Maria Castro De Jesus v. Michael J Astrue, No. 5:2010cv01522 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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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 MARIA CASTRO DE JESUS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-01522-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 14, 2010, seeking review of 19 the denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 October 28, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), 22 to proceed before the undersigned United States Magistrate Judge. 23 parties filed a Joint Stipulation on June 17, 2011, in which: 24 seeks an order reversing the Commissioner s decision and remanding this 25 case 26 administrative 27 Commissioner s decision be affirmed or, alternatively, remanded for 28 further administrative proceedings. for the payment of benefits proceedings; and or, alternatively, defendant requests On The plaintiff for further that the The Court has taken the parties 1 Joint Stipulation under submission without oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 On November 20, 2008, plaintiff filed an application for SSI.1 6 (Administrative Record ( A.R. ) 14, 16.) 7 January 28, 1958,2 8 to depression, bipolar disorder, and arthritis in her shoulders and 9 joints. 10 claims to have been disabled since May 17, 2003, due (A.R. 14-19, 171, 199.) experience. Plaintiff, who was born on Plaintiff has no past relevant work (A.R. 22.) 11 12 After the Commissioner denied plaintiff s claim initially and upon 13 reconsideration (A.R. 14, 64-68, 74-78), plaintiff requested a hearing 14 (A.R. 80-82). 15 counsel, appeared and testified, with the help of a Spanish interpreter, 16 at a hearing before Administrative Law Judge David M. Ganly (the ALJ ). 17 (A.R. 24-46.) 18 Samuel Landau, M.D., a specialist in internal medicine, and David On March 9, 2010, plaintiff, who was represented by Vocational expert Sandra M. Fioretti and medical experts 19 20 21 22 23 24 25 26 27 28 1 In his decision, the ALJ noted that plaintiff filed a prior application for [SSI] on March 8, 2005. Subsequently, a hearing was held and a decision was issued by an Administrative Law Judge on or about March 29, 2007, denying [plaintiff] benefits. (A.R. 14.) While that final decision created a presumption of continuing non-disability (A.R. 14, 21), the ALJ found that plaintiff overcame the presumption by provid[ing] persuasive evidence of significant changed circumstances (A.R. 21). 2 On the date the application for SSI was filed, plaintiff was 50 years old, which is defined as an individual closely approaching advanced age. (A.R. 22 (citing 20 C.F.R. § 416.963).) 2 1 Glassmire, Ph.D., a psychologist, also testified.3 2 2010, the ALJ denied plaintiff s claim (A.R. 14-23), and the Appeals 3 Council subsequently denied plaintiff s request for review of the ALJ s 4 decision (A.R. 1-5). (Id.) On May 19, That decision is now at issue in this action. 5 6 SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 The ALJ found that plaintiff has not engaged in substantial gainful activity since November 20, 2008, her application date. (A.R. 16.) The 10 ALJ determined that plaintiff has the following severe impairments: 11 mood disorder, not otherwise specified; and a psychotic disorder, not 12 otherwise specified. 13 does not have any severe physical impairment. 14 further determined that plaintiff does not have an impairment or 15 combination of impairments that meets or medically equals one of the 16 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 17 C.F.R. §§ 416.920(d), 416.925, 416.926). (Id.) The ALJ also determined that plaintiff (A.R. 16-17.) The ALJ (A.R. 17.) 18 19 20 After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ( RFC ) to: 21 22 perform a full range of work at all exertional levels but with 23 the following nonexertional limitations: 24 to perform simple repetitive tasks and do work that is object [plaintiff] is able 25 26 27 28 3 There are discrepancies in the record with respect to the spelling of the names of the vocational and medical experts. (Compare A.R. 14, with A.R. 24-46.) For purposes of this memorandum opinion and order, the Court has adopted the spelling used by the ALJ in his decision. 3 1 oriented with no interaction with the general public and only 2 non-intense interactions with co-workers and supervisors; 3 [plaintiff] cannot do work that requires hypervigilance. 4 5 (A.R. 18.) 6 7 The ALJ found that plaintiff is not able to communicate in 8 English, and is considered in the same way as an individual who is 9 illiterate in English. (A.R. 22.) The ALJ also found that 10 [t]ransferability of job skills is not an issue because [plaintiff] 11 does not have past relevant work [experience]. (Id.) 12 13 Having considered plaintiff s age, education, work experience, and 14 RFC, as well as the testimony of the vocational expert, the ALJ found 15 that jobs exist in significant numbers in the national economy that 16 plaintiff could perform, including those of kitchen helper, industrial 17 cleaner, and bench assembler. 18 concluded that plaintiff has not been under a disability, as defined in 19 the 20 application was filed. Social Security Act, (A.R. 22-23.) since November 20, Accordingly, the ALJ 2008, the date the (A.R. 23.) 21 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 25 decision to determine whether it is free from legal error and supported 26 by substantial evidence in the record as a whole. 27 F.3d 625, 630 (9th Cir. 2007). 28 evidence as a reasonable mind might accept as adequate to support a Orn v. Astrue, 495 Substantial evidence is such relevant 4 1 conclusion. 2 a mere scintilla but not necessarily a preponderance. 3 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 4 record can constitute substantial evidence, only those reasonably drawn 5 from the record will suffice. 6 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 7 8 Although this Court cannot substitute its discretion for that of 9 the Commissioner, the Court nonetheless must review the record as a 10 whole, weighing both the evidence that supports and the evidence that 11 detracts from the [Commissioner s] conclusion. 12 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 13 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 14 responsible for determining credibility, resolving conflicts in medical 15 testimony, and for resolving ambiguities. 16 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 17 18 The Court will uphold the Commissioner s decision when the evidence 19 is susceptible to more than one rational interpretation. 20 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 21 review only the reasons stated by the ALJ in his decision and may not 22 affirm the ALJ on a ground upon which he did not rely. 23 at 630; see also Connett, 340 F.3d at 874. 24 the Commissioner s decision if it is based on harmless error, which 25 exists only when it is clear from the record that an ALJ s error was 26 inconsequential to the ultimate nondisability determination. Robbins 27 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 28 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 at 679. 2 3 DISCUSSION 4 5 Plaintiff asserts the following claims: (1) the ALJ failed to meet 6 his burden at step five in determining that plaintiff is capable of 7 performing the jobs of kitchen helper, industrial cleaner, and bench 8 assembler; and (2) the ALJ posed an incomplete hypothetical to the 9 vocational expert.4 (Joint Stipulation ( Joint Stip. ) at 1-11.) 10 plaintiff s are 11 together. claims interrelated, the Court will address As them 12 13 I. The ALJ Did Not Meet His Burden At Step Five, Because He Improperly 14 Relied Upon The Testimony Of The Vocational Expert In Response To 15 An 16 Plaintiff s Language Limitations. Incomplete Hypothetical Question That Did Not Include 17 18 At step five of the sequential evaluation, the burden shifts from 19 the claimant to the ALJ to prove that, based on the claimant s RFC, age, 20 education, and past work experience, the claimant is able to perform 21 work that exists in significant numbers in the national economy. Smolen 22 v. 23 416.920(a)(4)(v), 416.960(c), 416.964. 24 claimant s educational level refers to, inter alia, formal schooling or 25 other training which contributes to [a claimant s] ability to meet Chater, 80 F.3d 1273, 1291 (9th Cir. 1996); 20 C.F.R. §§ Pursuant to the regulations, a 26 4 27 28 In the contentions section However, plaintiff subsumed her second Joint Stipulation, plaintiff states that the for the second claim was inadvertently left blank. contends, and the Court agrees, that plaintiff claim within her first claim. 6 1 vocational 2 communicate in English since this ability is often acquired or improved 3 by education. 4 educational level, the Commissioner uses categories that include, inter 5 alia, [i]lliteracy and [i]nability to communicate in English. 6 The category of illiteracy is defined as the inability to read or 7 write. 8 write a simple message such as instructions or inventory lists even 9 though the person can sign his or her name. requirements, and how well 20 C.F.R. § 416.964. [a claimant is] able to In evaluating a claimant s Id. We consider someone illiterate if the person cannot read or Generally, an illiterate 10 person 11 416.964(b)(1). 12 communicate 13 English is the dominant language of the country, it may be difficult for 14 someone who doesn t speak and understand English to do a job . . . . 15 Therefore, we consider a person s ability to communicate in English when 16 we evaluate what work, if any, he or she can do. 17 416.964(b)(5). has had in little With or no respect English, the formal to the schooling. category regulations of provide 20 C.F.R. [i]nability that, § to [b]ecause 20 C.F.R. § 18 19 The ALJ can meet his burden at step five by either taking the 20 testimony of a vocational expert or by referring to the Grids. See 21 Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006); see also 22 Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999)(describing how the 23 vocational expert s testimony and the Grids are used at step five). 24 the ALJ chooses, as in this case, to rely upon the testimony of a 25 vocational expert, the hypothetical posed to the vocational expert must 26 be accurate, detailed, and supported by the medical record. 27 the hypothetical presented to the vocational expert does not reflect all 28 of the claimant s limitations and/or is not supported by evidence in the 7 Id. If If 1 record, the [vocational] expert s testimony has no evidentiary value to 2 support a finding that the claimant can perform jobs in the national 3 economy. 4 1993)(citation and internal quotations omitted); Embrey v. Bowen, 849 5 F.2d 418, 422-23 (9th Cir. 1988); Gallant v. Heckler, 753 F.2d 1450, 6 1456 (9th Cir. 1984). To ensure the validity of the vocational expert s 7 hypothetical, the ALJ should base it upon evidence appearing in the 8 record, whether disputed or not. 9 10 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. Id. At the administrative hearing, the ALJ elicited the following testimony from the vocational expert: 11 12 Q 13 hypotheticals . . . . 14 consider a lady of the same age, education and prior work 15 experience as [plaintiff]. 16 like you to assume that there are no physical impairments, and 17 accordingly 18 limitations I d like you to assume that the individual could 19 perform simple repetitive tasks that were object oriented. 20 She should not have any interaction with the general public, 21 and should not have any intense interaction with either 22 coworkers or supervisors. 23 required to exercise any hypervigilance on the job. 24 given those limitations, would she be able to perform any of 25 - well forget that. She didn t have any prior relevant work. 26 Would she be able to - would there be some jobs she would be 27 able to perform? . . . Okay. no I m going to give you one or more For each of these we d like you to physical For the first hypothetical I d limitations. For psychological Additionally she should not be 28 8 Okay, 1 A 2 010. That work is medium, unskilled, SVP:2. Regionally there 3 are 4 positions. 5 code 381.687-018. 6 Regionally there are 2,000 positions. 7 30,000 positions. 8 positions. 9 assembler, There would be work as a kitchen helper, DOT code 318.687- 5,000 positions. Nationally in excess of 100,000 There would be work as an industrial cleaner, DOT That work is medium, unskilled, SVP:2. Nationally there are There would be a variety of assembly An example in that category would be bench DOT code 706.684-042. That 10 unskilled, SVP:2. 11 work is light, Nationally in excess of 35,000 positions. Regionally there are 2,500 positions. 12 13 . . . . 14 15 Q 16 with the Dictionary of Occupational Titles? . . . Are these jobs that you ve given us all consistent 17 18 A Yes, they would be. 19 20 (A.R. 42-43.) 21 22 Based upon the above testimony of the vocational expert as well as 23 the ALJ s consideration of plaintiff s age, education, work experience, 24 and RFC, the ALJ found that jobs exist in significant numbers in the 25 national economy that plaintiff could perform. 26 specifically cited the jobs of kitchen helper, industrial cleaner, and 27 bench assembler as examples of such jobs. 28 9 (A.R. 22-23.) (Id.) The ALJ 1 However, as plaintiff properly contends, the ALJ failed to include 2 in his hypothetical to the vocational expert the ALJ s finding that 3 plaintiff is not able to communicate in English, and is considered in 4 the same way as an individual who is illiterate in English. 5 The ALJ s failure to include plaintiff s inability to communicate in 6 English in his hypothetical to the vocational expert is not without 7 consequence. 8 vocational expert and adopted by the ALJ in his step five determination 9 require either a Language Level of 1 or 2 -- language levels that appear 10 to 11 illiteracy be As an initial matter, the three jobs cited by the inconsistent in (A.R. 22.) with English.5 plaintiff s Moreover, inability and to communicate significantly, because and the 12 13 14 15 16 17 18 19 5 The DOT indicates that the job of kitchen helper requires a Langauge Level of 1. A Level 1 Language Level requires the following reading, writing, and speaking skills: READING: Recognize meaning of 2,500 (two- or threesyllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers. WRITING: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. 20 SPEAKING: Speak simple sentences, using normal word order, and present and past tenses. 21 See, e.g., DOT No. 318.687-010, 1991 WL 672755 (1991)(kitchen helper). 22 The DOT indicates that the jobs of industrial cleaner and bench assembler require a Language Level of 2. A Level 2 Language Level requires the following reading, writing, and speaking skills: 23 24 25 26 27 28 READING: Passive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words per minute. Read adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation. Read instructions for assembling model cars and airplanes. WRITING: Write compound and complex sentences, using cursive style, proper end pronunciation, and employing adjectives and adverbs. 10 1 hypothetical posed to the vocational expert did not reflect all of 2 plaintiff s 3 evidentiary value with respect to 4 work in the national economy. limitations, the vocational expert s testimony has no plaintiff s ability to perform other 5 6 Accordingly, because the ALJ relied upon the testimony given by the 7 vocational expert in response to an incomplete hypothetical -- i.e., a 8 hypothetical that did not include plaintiff s inability to communicate 9 and illiteracy in English -- the Court cannot find the ALJ s step five 10 determination - that plaintiff can perform work available in the 11 national economy - to be supported by substantial evidence. Therefore, 12 the matter must be remanded to the ALJ to determine whether jobs exist 13 in significant numbers in the national economy that plaintiff could 14 perform, even with her inability to communicate and illiteracy in 15 English.6 16 17 18 19 SPEAKING: Speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses. See, e.g., DOT No. 381.687-018, 1991 WL 673258 (1991)(industrial cleaner); DOT No. 706.684-042, 1991 WL 679055 (1991)(bench assembler). 20 6 21 22 23 24 25 26 27 28 Defendant contends that the ALJ did not commit error at step five because: (1) the vocational expert was aware of plaintiff s limited English ability; (2) under the Grids, plaintiff s inability to communicate in English would have little effect on her ability to work ; and (3) there is significant evidence that [plaintiff] has more than minimal English ability. (Joint Stip. at 6-8.) Defendant s first ground is unpersuasive, because, while the vocational expert may have been aware of plaintiff s inability to communicate in English, the ALJ s hypothetical to the vocational expert did not include any language limitations, and there is no indication that the vocational expert took into account such limitations when determining that plaintiff could perform jobs in the national economy. The ALJ s second ground is equally unavailing, because when, as in this case, a claimant suffers only non-exertional limitations, the [G]rids are inappropriate. Lounsburry, 468 F.3d at 1115. Accordingly, defendant s reference to the Grids is unpersuasive. Defendant s third reason is also unpersuasive, 11 1 II. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 6 useful purpose would be served by further administrative proceedings, or 7 where the record has been fully developed, it is appropriate to exercise 8 this discretion to direct an immediate award of benefits. 9 ( [T]he decision of whether to remand for further proceedings turns upon Where no Id. at 1179 10 the likely utility of such proceedings. ). 11 outstanding issues that must be resolved before a determination of 12 disability can be made, and it is not clear from the record that the ALJ 13 would be required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. However, where there are Id. at 1179-81. 15 16 Remand is the appropriate remedy to allow the ALJ the opportunity 17 to remedy the above-mentioned deficiencies and errors. 18 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 19 further proceedings is appropriate if enhancement of the record would be 20 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 21 (remand appropriate to remedy defects in the record). See, e.g., On remand, the 22 23 24 25 26 27 28 because the ALJ specifically found that plaintiff is unable to communicate in English, and there is no evidence that plaintiff s limited English abilities rise to the language levels required by the jobs identified by the ALJ as those plaintiff could perform. Moreover, the Court cannot entertain post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 (noting that a court may review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely ); Connett, 340 F.3d at 874 (stating [w]e are constrained to review the reasons the ALJ asserts and [i]t was error for the district court to affirm the ALJ s . . . decision based on evidence that the ALJ did not discuss ). 12 1 ALJ 2 Specifically, the ALJ must pose a complete hypothetical to a vocational 3 expert, which includes, among other things, plaintiff s English language 4 limitations, to determine what work, if any, plaintiff can perform. must correct the above-mentioned deficiencies and errors. 5 6 CONCLUSION 7 8 Accordingly, for the reasons stated above, IT IS ORDERED that the 9 decision of the Commissioner is REVERSED, and this case is REMANDED for 10 further proceedings consistent with this Memorandum Opinion and Order. 11 12 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 13 copies of this Memorandum Opinion and Order and the Judgment on counsel 14 for plaintiff and for defendant. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: July 26, 2011 19 20 21 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 13
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