Joe Munoz Jr v. Michael J Astrue, No. 5:2011cv02042 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiffs and Defendants motions for summary judgmentare denied and this matter is remanded for further administrative actionconsistent with this Opinion.LET JUDGMENT BE ENTERED ACCORDINGLY. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOE MUNOZ, JR., 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, 15 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) NO. ED CV 11-2042-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY 20 ORDERED that Plaintiff s and Defendant s motions for summary judgment 21 are denied and this matter is remanded for further administrative action 22 consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on January 6, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on February 15, 2012. 1 Plaintiff filed a motion for summary judgment on June 15, 2012. 2 Defendant filed a motion for summary judgment on July 16, 2012. 3 Court has taken both motions under submission without oral argument. 4 See L.R. 7-15; Order, filed January 9, 2012. The 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 Plaintiff, a former warehouse worker, asserts disability based on 9 alleged mental impairments (Administrative Record ( A.R. ) 26-46, 48, 10 108-09, 139, 153). Dr. Romualdo R. Rodriguez, a consultative physician, 11 diagnosed a depressive disorder, but opined that Plaintiff is [a]ble 12 to understand, remember, and carry out simple one or two-step job 13 instructions 14 instructions (A.R. 233-34). 15 opined 16 performing at least simple 1-2 step tasks, but also opined that 17 Plaintiff is moderately limited in his ability to carry out detailed 18 instructions (A.R. 239, 246, 248). that . . . [and Plaintiff s is] [a]ble to do detailed and complex Dr. N. Haroun, a state agency physician, depression should not preclude him from 19 20 Plaintiff testified to depression that allegedly prevents him from 21 doing much of anything (A.R. 35, 38, 41-42). Plaintiff assertedly 22 cannot concentrate long enough or well enough to read or even to watch 23 television (A.R. 38, 41-42). Plaintiff s sister reported that Plaintiff 24 previously was able to concentrate [and] stay functional, but now 25 can t stay focused enough to have any activities (A.R. 160-63). 26 Plaintiff s sister indicated that Plaintiff s condition affects his 27 ability to follow instructions and its [sic] hard for him to stay 28 focused (A.R. 164). According to the sister, Plaintiff tends to get 2 1 very confused, and cannot follow written instructions well (id.). 2 3 The Administrative Law Judge ( ALJ ) found that a severe 4 depressive disorder has reduced Plaintiff s mental capacity such that 5 Plaintiff can perform only one-to-two step instruction jobs (A.R. 12- 6 15). 7 perform Plaintiff s past relevant work as a warehouse worker (A.R. 48- 8 49). A vocational expert testified that a person so limited could 9 10 According to the Dictionary of Occupational Titles ( DOT ), 11 Plaintiff s past relevant work requires Reasoning Development Level 2. 12 DOT § 922.687-058. 13 [a]pply commonsense understanding to carry out detailed but uninvolved 14 written or oral instructions. 15 require a slightly higher level of functioning than Level 1. 16 defines Level 1 as requiring that the worker [a]pply commonsense 17 understanding to carry out simple one-or-two-step instructions. . . . 18 Id. The DOT defines Level 2 as requiring the worker to DOT Appendix C. Level 2 appears to The DOT 19 20 The ALJ did not ask the vocational expert whether the expert s 21 testimony was consistent with the information in the DOT (A.R. 48-49). 22 The vocational expert did not volunteer whether the expert s testimony 23 was consistent with the information in the DOT (id.). 24 decision states that the vocational expert s testimony is consistent 25 with the information contained in the [DOT] (A.R. 16). 26 /// 27 /// 28 The ALJ s In apparent reliance on the vocational expert s testimony, the ALJ 3 1 found that Plaintiff still can perform Plaintiff s past relevant work 2 (A.R. 16). 3 Council denied review (A.R. 1-3). The ALJ therefore denied benefits (id.). The Appeals 4 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. section 405(g), this Court reviews the 8 Administration s decision to determine if: (1) the Administration s 9 findings are supported used by correct substantial legal evidence; standards. See and (2) Carmickle the 10 Administration 11 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 12 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is such relevant 13 evidence as a reasonable mind might accept as adequate to support a 14 conclusion. 15 and quotations omitted); see Widmark v. Barnhart, 16 454 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation 17 18 DISCUSSION 19 20 Social Security Ruling 00-4p1 provides: 21 22 Occupational 23 generally 24 information supplied by the DOT. 25 unresolved conflict between [vocational expert] evidence and evidence should be provided by consistent a [vocational with the expert] occupational When there is an apparent 26 27 28 v. 1 Social Security rulings are binding on ALJs. Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990); see 20 C.F.R. § 422.408. 4 1 the DOT, the adjudicator must elicit a reasonable explanation 2 for the conflict before relying on the [vocational expert] 3 evidence to support a determination or decision about whether 4 the claimant is disabled. 5 the adjudicator s duty to fully develop the record, the 6 adjudicator will inquire on the record, as to whether or not 7 there is such consistency. 8 evidence about the requirements of a job or occupation, the 9 adjudicator has an affirmative responsibility to ask about any conflict At the hearings level, as part of between . . . 10 possible that 11 When a VE or VS provides VE or VS evidence and information provided in the DOT. 12 13 The procedural requirements of SSR 00-4p ensure that the record is 14 clear as to why an ALJ relied on a vocational expert s testimony, 15 particularly in cases where the expert s testimony conflicts with the 16 [DOT]. 17 see Light v. Social Security Administration, 119 F.3d 789, 794 (9th Cir. 18 1997) (error exists where [n]either the ALJ nor the vocational expert 19 explained the reason for departing from the DOT ); Johnson v. Shalala, 20 60 F.3d 1428, 1435 (9th Cir. 1995) ( an ALJ may rely on expert testimony 21 which contradicts the DOT, but only insofar as the record contains 22 persuasive evidence to support the deviation ). Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); 23 24 In the present case, the ALJ erred by failing to inquire, on the 25 record, as to whether or not the vocational expert s testimony was 26 consistent with the information in the DOT. 27 this error was material depends on whether there existed an apparent 28 unresolved conflict between the vocational expert s testimony and the 5 See SSR 00-4p. Whether 1 DOT. See id. 2 3 Plaintiff argues that there plainly existed an apparent unresolved 4 conflict, relying on the wording of the ALJ s residual functional 5 capacity finding. 6 limitation to one-to-two step instruction jobs with a limitation to 7 jobs requiring no more than Level 1 reasoning. In making this argument, Plaintiff equates the ALJ s 8 9 Defendant argues that there did not exist any apparent unresolved 10 conflict between the vocational expert s testimony and the DOT, 11 notwithstanding the wording of the ALJ s residual functional capacity 12 finding. 13 not intend the limitation to one-to-two step instruction jobs to 14 entail a limitation to jobs requiring no more than Level 1 reasoning. In making this argument, Defendant submits that the ALJ did 15 16 Several district courts have discerned material error in 17 administrative decisions in which ALJs have found that claimants who 18 were limited to one-to-two step instruction jobs could perform jobs 19 requiring Level 2 reasoning. 20 2603266, at *3 (C.D. Cal. July 3, 2012); Wiszowaty v. Astrue, 2012 WL 21 967415, at *21-23 (N.D. Ind. March 21, 2012); Pouria v. Astrue, 2012 WL 22 1977278, at *2-3 (C.D. Cal. June 1, 2012); Whitlock v. Astrue, 2011 WL 23 3793347, at *5 (D. Or. Aug. 24, 2011). 24 repeatedly has refused to discern any material error in administrative 25 decisions in which ALJs have found that claimants who were limited to 26 one-to-two step instruction jobs could perform jobs requiring Level 2 27 reasoning. 28 (E.D. Cal. May 5, 2010); Villafana v. Astrue, 2010 WL 1286818, at *9-10 See, e.g., Ibarra v. Astrue, 2012 WL Yet, at least one district court See, e.g., Seechan v. Astrue, 2010 WL 1812637, at *10-11 6 1 (E.D. Cal. March 29, 2010); Lee v. Astrue, 2010 WL 653980, at *10-11 2 (E.D. Cal. Feb. 19, 2010). 3 4 Even if the above-cited decisions were consistent and binding (and 5 they are neither), the decisions would not necessarily dictate the 6 result in the present case. 7 intendment 8 incorporated into the hypothetical posed to the vocational expert). 9 Specifically, the decisive question is: of the ALJ s Here, the decisive question concerns the residual functional capacity finding (as Did this ALJ find that this 10 severe mental impairment limited this Plaintiff to jobs requiring only 11 Level 1 reasoning? 12 Cal. 13 conclusions regarding whether an RFC limitation for simple, one-to-two 14 step instructions is compatible with DOT reasoning level 2 appears to 15 be predicated on the particular facts of each case and what the ALJ or 16 the physician s words of limitation meant in the context of the medical 17 evidence in the record ). 18 concludes that the intendment of the ALJ s residual functional capacity 19 finding is unclear in relation to the question presented. 20 intendment is unclear, remand for clarification is appropriate. 21 e.g., Rodriguez v. Astrue, 2011 WL 1103119, at *9 (E.D. Cal. March 22, 22 2011) ( remand for further proceedings is proper due to the ambiguity of 23 the ALJ s decision ). 24 /// 25 /// Jan. 4, See Gonzales v. Astrue, 2012 WL 14002, at *12 (E.D. 2012) (suggesting that the difference in courts For the reasons discussed below, the Court Because the See, 26 There exist at least three reasons why this Court cannot dismiss 27 the possibility that the ALJ s residual functional capacity finding 28 intended to limit Plaintiff to jobs requiring only Level 1 reasoning. 7 1 First, in defining Plaintiff s residual functional capacity, the ALJ 2 chose language closely paralleling the language of the DOT s definition 3 of Level 1. 4 step instruction jobs ; the DOT defines Level 1 as entailing the ability 5 to carry out simple one-or-two-step instructions. 2 6 this Court have deemed similar parallelism of language sufficiently 7 significant to require remand on similar facts. 8 Astrue, 2012 WL 2603266, at *3; Martinez v. Astrue, 2012 WL 589671, at 9 *9 (C.D. Cal. Feb. 22, 2012); Coleman v. Astrue, 2011 WL 781930, at *5-6 The ALJ found Plaintiff capable of working in one-to-two Other judges of See, e.g., Ibarra v. 10 (C.D. Cal. Feb. 28, 2011). Defendant essentially invites the Court to 11 attribute this parallelism to mere coincidence. 12 Court should infer that the ALJ s restriction of Plaintiff to one-to- 13 two step instruction jobs did not intend to restrict Plaintiff to 14 simple one-or-two step instruction jobs, because, in context, these 15 very similar phrases should be accorded very different meanings. Though 16 seemingly counterintuitive, the invited inference could be correct, in 17 light of the opinions of Dr. Rodriguez and the context provided by other 18 statements in the ALJ s decision. 19 would be unduly conjectural, in the absence of clarification from the 20 ALJ. 21 /// Defendant argues the Nevertheless, the invited inference 22 23 Second, Dr. Naroun, one of the physicians whose opinions the ALJ 24 cited with approval, also used language nearly identical to the language 25 of Level 1 (A.R. 246) ( simple one-two step tasks ). Another judge of 26 27 28 2 Furthermore, the ALJ s hypothetical question to the vocational expert assumed an individual limited to one to two simple instruction jobs (A.R. 48) (emphasis added). 8 1 this Court regarded as significant a physician s use of language similar 2 to the language of Level 1. 3 *4 (C.D. Cal. July 6, 2012). 4 claimant capable of performing jobs requiring Level 2 reasoning despite 5 a physician s opinion that the claimant was limited to following simple 6 one and two step instructions. 7 language, the Calderon Court could not confidently deem harmless the 8 ALJ s omission of this limitation from the ALJ s residual functional 9 capacity determination.3 See Calderon v. Astrue, 2012 WL 2806266, at In Calderon, the ALJ had found the Because of the physician s choice of Id. at *4. 10 11 Third, contrary to Defendant s arguments, the record does contain 12 some evidence that Plaintiff s mental impairments have reduced his 13 functioning below Level 2 reasoning. 14 Naroun that Plaintiff is moderately limited in Plaintiff s ability to 15 carry 16 Plaintiff s alleged lack of capacity to function. 17 a lay witness reported observations of a claimant, and can reject those 18 observations only by giving reasons germane to that witness. 19 Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006); Regennitter 20 v. Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999); Nguyen v. Chater, 21 100 F.3d 1462, 1467 (9th Cir. 1996); Smolen out detailed instructions, In addition to the opinion of Dr. Plaintiff s sister corroborated An ALJ must consider 22 23 24 25 26 27 28 3 Dr. Naroun found Plaintiff limited in his ability to carry out detailed instructions, although Dr. Rodriguez reached an opposite conclusion (compare A.R. 248 with A.R. 234). The ALJ s apparent approval of both of these physicians opinions injects additional uncertainty into the record (see A.R. 15). 9 See 1 v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also SSR 96-7p.4 2 ALJ s decision fails even to mention the sister s statements (A.R. 11- 3 16). 4 rejected 5 functional limitations (see id.). The Thus, the Court cannot infer that the ALJ s decision properly the sister s statements regarding Plaintiff s asserted 6 7 In arguing the alleged harmlessness of the ALJ s violation of SSR 8 00-4p, Defendant submits 9 vocational expert at all. that the ALJ need not have consulted a It is true that an ALJ need not always 10 consult a vocational expert to find that a claimant can perform the 11 claimant s past relevant work. 12 681 (9th Cir. 1993); Miller v. Heckler, 770 F.2d 845, 850 (9th Cir. 13 1985). 14 however, the record lacks substantial evidence that a person limited to 15 one-to-two step instruction jobs can perform Plaintiff s past relevant 16 work. 17 The ALJ s own opinion may not properly supply the vocational evidence 18 necessary to depart from the DOT. 19 Administration, 119 F.3d 789, 794 (9th Cir. 1997) (an explanation and 20 persuasive supporting evidence must accompany any administrative See Matthews v. Shalala, 10 F.3d 678, Absent the vocational expert s testimony in the present case, The DOT appears to suggest that a person so limited cannot do so. See Light v. Social Security 21 22 23 24 25 26 27 28 4 Most of the above-cited authorities speak in terms of the testimony of lay witnesses. The standards discussed in these authorities, however, appear equally applicable to written statements submitted by lay witnesses. Hendrix v. Astrue, 2010 WL 60959, at *10 (C.D. Cal. Jan. 4, 2010); accord Hughes v. Commissioner, 2010 WL 4561404, at *1 (9th Cir. Nov. 12, 2010) (applying to written statements by lay witnesses the same standards applicable to testimony by lay witnesses); cf. Schneider v. Commissioner, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ should have considered letters submitted by claimant s friends and ex-employers in evaluating severity of claimant s functional limitations). 10 1 deviation from the DOT); Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th 2 Cir. 1988) (administration may not speculate concerning the requirements 3 of particular jobs). 4 5 Finally, the fact that Plaintiff previously performed the warehouse 6 worker job, of course, is not a sufficient basis on which to conclude he 7 could do so at the time of the ALJ s decision. 8 impairments are progressive in nature. 9 F.2d 1116, 1121-22 (6th Cir. 1989), cited with approval in Morgan v. Many if not most mental See Blankenship v. Bowen, 874 10 Sullivan, 945 F.2d 1079, 1082-83 (9th Cir. 1991).5 11 evidence, including the sister s statements, suggesting a significant, 12 relatively recent deterioration in Plaintiff s mental capacity. There exists record 13 14 CONCLUSION AND ORDER 15 16 The errors discussed above were potentially prejudicial to the 17 ALJ s decision, such that the decision must be reversed. See McLeod v. 18 Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (reversal appropriate where 19 the reviewing court can determine from the circumstances of the case 20 that further administrative review is needed to determine whether there 21 was prejudice from the error ). When a court reverses an administrative 22 determination, the proper course, except in rare circumstances, is to 23 24 25 26 27 28 5 This Court cannot deem the ALJ s errors harmless on the ground that the record supports the conclusion Plaintiff actually possesses greater capacity than the capacity to perform one-totwo step instruction jobs. The ALJ s capacity determination must circumscribe the Court s analysis. See Gonzalez v. Astrue, 2012 WL 2064947, at *4 (E.D. Cal. June 7, 2012) ( The Court cannot reassess the medical evidence to conclude Plaintiff is less limited than indicated by the ALJ s RFC determination ). 11 1 remand to the agency for additional investigation or explanation. INS 2 v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). 3 Remand is proper where, as here, additional administrative proceedings 4 could remedy the defects in the decision. 5 1496, 1497 (9th Cir. 1984). See Kail v. Heckler, 722 F.2d 6 7 Therefore, Plaintiff s and Defendant s motions for summary judgment 8 are denied and this matter is remanded for further administrative action 9 consistent with this Opinion. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: July 20, 2012. 14 15 16 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12
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