Ricardo Chavez v. Michael J Astrue, No. 5:2011cv00125 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal, Pursuant to sentence four of 42 U.S.C. § 405(g),3 IT IS ORDERED that Judgment be entered REVERSING and REMANDING the decision of the Commissioner for further administrative proceedings consistent with this decision. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICARDO CHAVEZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 11-00125 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Ricardo Chavez ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 ( Commissioner 24 Supplemental Security Income ( SSI ). 25 to 28 U.S.C. § 636, to the jurisdiction of the undersigned United States 26 Magistrate Judge. For the reasons stated below, the decision of the 27 Agency 28 is or REVERSED the and Agency ) REMANDED denying his application for The parties consented, pursuant for further proceedings. 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on March 8, 2007 alleging 5 a disability onset date of March 1, 2007, due to affective mood 6 disorders and a learning disorder. 7 The Agency initially denied Plaintiff s claim on April 10, 2007. (Id.). 8 When the Agency denied Plaintiff's application on reconsideration, 9 Plaintiff requested a hearing. (Administrative Record ( AR ) 73). (AR 115). On October 31, 2008, 10 Plaintiff appeared and testified at a hearing before an Administrative 11 Law Judge ( ALJ ). 12 supplemental hearing held before the same ALJ on January 23, 2009. 13 51-72). 14 (AR 5-17). 15 on November 20, 2010 (AR 1-3) making the ALJ s decision the final 16 decision of the Agency. 17 action. (AR 18-50). He also appeared and testified at a (AR On April 23, 2009, the ALJ issued a decision denying benefits. The Appeals Council denied Plaintiff s request for review Plaintiff subsequently commenced the instant 18 19 III. 20 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 21 22 To qualify for disability benefits, a claimant must demonstrate a 23 medically determinable physical or mental impairment that prevents him 24 from engaging in substantial gainful activity,1 which is expected to 25 result in death or last for a continuous period of at least twelve 26 27 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties done for pay or 28 profit. 20 C.F.R. § 416.910. 2 1 months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 2 42 U.S.C. § 423(d)(1)(A)). 3 incapable of performing the work he previously performed, and render 4 claimant 5 employment existing in the national economy. Tackett v. Apfel, 180 F.3d 6 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(D)(2)(A)). incapable of The impairment must render the claimant performing any other substantial gainful 7 8 9 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 10 11 (1) Is the claimant presently engaged in substantial gainful 12 activity? 13 not, proceed to step two. 14 (2) 15 16 If so, the claimant is not found disabled. Is claimant s impairment severe? found not disabled. (3) If If not, the claimant is If so, proceed to step three. Does claimant s impairment meet or equal the requirements for 17 any impairment listed at 20 C.F.R. Part 404, Subpart P, 18 Appendix 1? 19 proceed to step four. 20 (4) If so, the claimant is found disabled. Is the claimant capable of performing his past work? 21 the claimant is found not disabled. 22 If not, If so, five. 23 (5) If not, proceed to step Is the claimant able to do any other work? 24 claimant is found disabled. 25 If not, the If so, the claimant is found not disabled. 26 27 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 28 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 3 1 The claimant has the burden of proof at steps one through four, and 2 the Commissioner has the burden of proof at step five. 3 F.3d at 953-54. 4 establishing an inability to perform his past work, the Commissioner 5 must show that the claimant can perform some other work that exists in 6 significant numbers in the national economy, taking into account the 7 claimant s residual functional capacity ( RFC ),2 age, education, and 8 work experience. 9 The Commissioner may do so by the testimony of a vocational expert or 10 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 11 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 12 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 13 claimant 14 limitations, the Grids are inapplicable and the ALJ must take testimony 15 from a vocational expert. 16 2000). has Bustamante, 262 If, at step four, the claimant meets his burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 17 18 IV. 19 STANDARD OF REVIEW 20 21 Under 41 U.S.C. § 405(g), a district court may review the 22 Commissioner s decision to deny benefits. The court may set aside the 23 Commissioner s decision when the ALJ s findings are based on legal error 24 or are not supported by substantial evidence in the record as a whole. 25 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(citing 26 27 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 relevant evidence. 20 C.F.R. § 416.945(a). 4 1 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 2 Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 3 4 Substantial evidence is more than a scintilla, but less than a 5 preponderance. Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 6 112 F.3d 1064, 1066 (9th Cir. 1997). 7 evidence which a reasonable person might accept as adequate to support 8 a conclusion. 9 at 1279). To determine whether substantial evidence supports a finding, 10 the court must consider the record as a whole, weighing both evidence 11 that supports and evidence that detracts from the [Commissioner s] 12 conclusion. Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 13 F.3d 953, 956 (9th Cir. 1993)). 14 either affirming or reversing that conclusion, the court may not 15 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 16 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Specifically, it is relevant Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d If the evidence can reasonably support 17 18 V. 19 DISCUSSION 20 21 Plaintiff contends that the ALJ erred because he failed to identify 22 specific, legitimate reasons for rejecting Dr. Sekhorn s opinion. 23 (Complaint at 2); and 2). 24 erred by finding that Plaintiff could work as a cleaner, hospital 25 cleaner, and mail clerk because the requirements of the jobs are 26 inconsistent with Plaintiff s Residual Functional Capacity ( RFC ). 27 (Id. at 5). 28 \\ Additionally, Plaintiff argues that the ALJ The Court agrees. 5 1 2 A. The ALJ Failed to Provide Specific And Legitimate Reasons To Reject Dr. Sekhorn s Opinion 3 4 Where a treating physician s opinion is contradicted the [ALJ] 5 must determine credibility and resolve the conflict. Valentine v. 6 Comm r, 574 F.3d 685, 692 (9th Cir. 2009) (quoting Lester v. Chater, 81 7 F.3d 821, 830 (9th Cir. 1995)). 8 treating physician in favor of a conflicting opinion . . . an ALJ must 9 make findings setting forth specific, legitimate reasons for doing so However, to reject the opinion of a 10 that are based on substantial evidence in the record. Id. (internal 11 quotation marks omitted). 12 conclusions. 13 they, rather than the [physician s] are correct. 14 F.3d 625, 632 (9th Cir. 2007) (internal citation omitted). The ALJ must do more than offer his He must set forth his own interpretations and explain why Orn v. Astrue, 495 15 16 Here, Plaintiff s treating physician, Dr. Sekhorn, treated 17 Plaintiff for over five years and stated his diagnosis was 298.9 18 Psychotic disorders. 19 experiences episodes of auditory hallucinations and paranoia episodes 20 despite complying with his medication requirements. (Id.). Plaintiff s 21 medications include Haldol, Zyprexa and Cogentin. (Id.). Dr. Sekhorn 22 concluded that Plaintiff is unable to work and may be eligible for SSI 23 benefits. (AR 396). According to Dr. Sekhorn, Plaintiff (Id.). 24 25 While the ALJ was correct in asserting that a finding of disability 26 is reserved to the Commissioner (AR 15), he nevertheless had a duty 27 to provide specific and legitimate reasons, based upon evidence in the 28 record, for rejecting Dr. Sekhorn s opinion. 6 Valentine, 574 F.3d at 1 692. However, the ALJ merely dismissed Dr. Sekhorn s conclusions 2 without pointing to evidence in the record to support such a finding. 3 Cf. Orn, 495 F.3d at 633-34. 4 Plaintiff s episodes of auditory hallucinations and paranoia. 5 396). Additionally, he did not address or refute Plaintiff s diagnosis 6 of 298.9 Psychotic disorders. (Id.). Thus, the ALJ failed to provide 7 specific, legitimate reasons based on substantial evidence in the record 8 to reject Dr. Sekhorn s opinion. 9 provide specific, legitimate reasons, based upon factual evidence in the 10 record, for rejecting Dr. Sekhorn s opinion or incorporate Dr. Sekhorn's 11 limitations into the RFC determination. The ALJ did not address or refute (AR Upon remand, the ALJ must either 12 13 14 B. The ALJ Did Not Address The Deviation Between Plaintiff s RFC And The DOT Requirements Of Jobs The VE Said Plaintiff Could Perform 15 16 In order for an ALJ to rely on job descriptions in the Dictionary 17 of Occupational Titles ( DOT ) that fails to comport with a Plaintiff s 18 limitations, the ALJ must definitely explain this deviation. 19 v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001). 20 expert testimony that contradicts the DOT if the record contains 21 persuasive evidence supporting the deviation. Tommasetti v. Astrue, 533 22 F.3d 1035, 1042 (9th Cir. 2008); Johnson v. Shalala, 60 F.3d 1428, 1435 23 (9th Cir. 1995). 24 or incomplete VE testimony. Pinto The ALJ may rely on However, an ALJ may not rely on personal speculation See Tommasetti, 533 F.3d at 1042. 25 26 Here, the ALJ did not definitively explain the deviation between 27 his Residual Functional Capacity ( RFC ) finding of no contact with the 28 public and no reading past basic sentences (AR 12) and the job 7 1 requirements of cleaner, hospital cleaner, and mail clerk. 2 Pinto, 249 F.3d at 847. 3 4 First, both cleaner and hospital cleaner positions require 5 Plaintiff to interact with the public and read past basic sentences. 6 The cleaner reading requirement of passive vocabulary of 5,000 to 6,000 7 words" at a rate of 190-215 words per minute deviates from Plaintiff s 8 reading basic sentences limitation. 9 673258. DICOT 381.687-018, 1991 WL Additionally, the duties of a cleaner consisting of keeping 10 production areas clean, transporting materials between buildings, and 11 maintaining outside areas by cutting grass or shoveling snow are 12 deviations because they place Plaintiff in contact with the public. Id. 13 Moreover, 14 hospital areas also places Plaintiff in contact with the public. 15 323.687-010, 1991 WL 673265. 16 the cleaner reading requirements, which deviates from the reading basic 17 sentences limitation. Id. Further, the requirement of deal[ing] with 18 several concrete variables is inconsistent with Plaintiff s limitation 19 to perform simple repetitive tasks. 20 that 21 positions requires a deviation from the DOT description of these 22 positions. the Plaintiff hospital can cleaner perform duties requiring cleaning various DICOT The reading requirements are identical to the Id. the Therefore, the ALJ s finding cleaner and hospital cleaner 23 24 Second, the mail clerk position requires Plaintiff to read[] past 25 basic sentences and perform more than simple repetitive tasks. (AR 26 12). 27 vocabulary of 5,000 to 6,000 words at a rate of 190-215 words per 28 minute, which is inconsistent with Plaintiff s reading limitation. The mail clerk position also requires reading with a passive 8 1 DICOT 209.687-026, 1991 WL 671813. Mail clerk duties consisting of 2 sorting, time-stamping, examining, collecting, and distributing mail 3 exceed Plaintiff s limitation to perform simple repetitive tasks. 4 Moreover, the requirement that Plaintiff deal with problems involving 5 several concrete variables is also inconsistent with Plaintiff s 6 limitations. Id. Id. 7 8 9 The ALJ failed to definitively explain the deviations from the DOT requirements and his RFC finding. Pinto, 249 F.3d at 847. In fact, he 10 never acknowledged the deviations in his opinion. Further, the ALJ did 11 not have expert testimony to justify the deviation from DOT because he 12 never asked the VE to testify about the deviations. 13 F.3d at 1042. This error was not harmless because there were deviations 14 between Plaintiff s limitations and every position the VE found he could 15 perform. 16 2007). 17 definitively explain the deviations from the DOT, or reevaluate the work 18 that Plaintiff can perform. Tommasetti, 533 Cf. Massachi v. Astrue, 486 F.3d 1149, 1154 n. 19 (9th Cir. Therefore, remand is required. 19 20 21 22 23 24 25 26 27 28 9 On remand, the ALJ must either 1 2 VI. 3 CONCLUSION 4 5 Pursuant to sentence four of 42 U.S.C. § 405(g),3 IT IS ORDERED 6 that Judgment be entered REVERSING and REMANDING the decision of the 7 Commissioner for further administrative proceedings consistent with 8 this decision. 9 Order and the Judgment on counsel for both parties. The Clerk of the Court shall serve copies of this 10 11 DATED: October 7, 2011 12 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED 17 TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 18 LEXIS. 19 20 21 22 23 24 25 26 3 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment 28 affirming, modifying, or reversing, the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27 10

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