Lynn Duron v. Michael J. Astrue, No. 5:2011cv01791 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LYNN DURON, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. ED CV 11-1791 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Lynn Duron ( Plaintiff ) challenges the Social Security Commissioner s 19 20 ( Defendant ) decision denying her application for disability benefits. Specifically, 21 Plaintiff contends that the Administrative Law Judge ( ALJ ) erred at step five in 22 relying on the testimony of the Vocational Expert ( VE ) and finding that Plaintiff 23 can perform the positions of order clerk, charge account clerk, and surveillance 24 systems monitor. (Joint Stip. at 3-13, 19); see Dictionary of Occupational Titles 25 ( DOT ) 205.367-014, 209.567-014, 379.367-010. Because these positions all 26 require a reasoning level of 3 under the DOT, Plaintiff argues that they conflict with 27 28 1/ Following the resignation of Michael J. Astrue, Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 her limitation to simple, repetitive tasks.2/ (Joint Stip. at 3-13, 19.) As discussed 2 below, the Court finds in favor of Plaintiff, albeit on different grounds. 3 The Ninth Circuit has yet to address the question of whether an occupation 4 with a reasoning level of 3 can involve simple, repetitive tasks. As both parties have 5 demonstrated, district courts within our circuit are split on this issue for a variety of 6 reasons, but the majority do find a conflict. See Torres v. Astrue, 2012 WL 7 1032897, at *3 (C.D. Cal. Mar. 27, 2012) (reviewing district court opinions). 8 For present purposes, however, the Court need not determine whether such an 9 inconsistency exists. Instead, the Court finds error here on two other grounds. 10 First, the Court recalls the applicable burden of proof at step five. There, the 11 Commissioner bears the burden to identify jobs that a claimant can perform despite 12 her identified limitations. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 13 Without consensus as to whether a reasoning level of 3 is inconsistent with simple, 14 repetitive tasks, it is unclear whether the positions identified by Defendant are 15 actually viable. In light of this ambiguity, the Court cannot conclude that Defendant 16 met its step five burden.3/ Second, the ALJ has an affirmative responsibility to ask about any possible 17 18 conflict between a VE s testimony and the DOT. Social Security Ruling ( SSR ) 19 00-4p, 2000 WL 1898704, at *4 (emphasis added). As explained above, a conflict 20 21 22 2/ A reasoning level of 3 requires an employee to [a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic 24 form and to [d]eal with problems involving several concrete variables in or from 25 standardized situations. DOT, Appendix C, 1991 WL 688702. 23 3/ Tellingly, some minority courts have ruled in favor of the Commissioner, at least in part, because the alleged error occurred at step four (i.e., when Plaintiff bears 27 the burden of proof). See, e.g., Leon v. Astrue, 830 F. Supp. 2d 844, 850 (C.D. Cal. 28 2011), Megliorino v. Astrue, 2012 WL 2847705, at *10 (C.D. Cal. July 10, 2012). 26 2 1 arguably exists here in the absence of conclusive legal authority.4/ Despite this 2 possibility, however, the ALJ failed to obtain a reasonable explanation for such a 3 conflict, and thus error must be found under SSR 00-4p. See McGensy v. Astrue, 4 2010 WL 1875810, at *4 (C.D. Cal. May 11, 2010). 5 Accordingly, for the reasons stated above, the Court determines that the ALJ 6 erred at step five. 7 C. Remand is Warranted 8 With error established, this Court has discretion to remand or reverse and 9 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 10 useful purpose would be served by further proceedings, or where the record has been 11 fully developed, it is appropriate to exercise this discretion to direct an immediate 12 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 13 But where there are outstanding issues that must be resolved before a determination 14 can be made, or it is not clear from the record that the ALJ would be required to find 15 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 16 See id. at 594. Here, in light of the error described above, the ALJ shall reevaluate the 17 18 testimony of the VE, and obtain a reasonable explanation for any conflict between 19 20 21 22 23 24 25 26 27 28 4/ Defendant contends that no conflict exists because mental complexity is best gauged by a job s skill level, not its reasoning level. (Joint Stip. at. 18.) But Meissl v. Barnhart a case upon which Defendant relies aptly rejects this very argument: A job s [skill level] is focused on the amount of lapsed time it takes for a typical worker to learn the job s duties. A job s reasoning level, by contrast, gauges the minimal ability a worker needs to complete the job s tasks themselves. . . . [Skill level] speak[s] to the issue of the level of vocational preparation necessary to perform the job, not directly to the issue of a job s simplicity, which appears to be more squarely addressed by [its reasoning level]. Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005) (citations omitted). 3 1 that testimony and the DOT, specifically with respect to Plaintiff s limitation to 2 simple, repetitive tasks. 3 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 4 REVERSING the decision of the Commissioner denying benefits and 5 REMANDING the matter for further administrative action consistent with this 6 decision.5/ 7 8 Dated: February 20, 2013 9 ____________________________________ 10 Hon. Jay C. Gandhi United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5/ In light of the Court s remand instructions, it is unnecessary to address 28 Plaintiff s remaining contention. (See Joint Stip. at 19-24, 27.) 4

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