Maria M. Camacho v. Michael J. Astrue, No. 5:2012cv01155 - Document 24 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA M. CAMACHO, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ 18 I. 19 ) Case No. EDCV 12-1155 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) ) SUMMARY On July 17, 2012, plaintiff Maria M. Camacho ( plaintiff ) filed a 20 Complaint seeking review of the Commissioner of Social Security s denial of 21 plaintiff s application for benefits. The parties have consented to proceed before a 22 United States Magistrate Judge. 23 This matter is before the Court on the parties cross motions for summary 24 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; July 23, 2012 Case Management Order ¶ 5. 27 /// 28 /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On May 11, 2007, plaintiff filed an application for Disability Insurance 7 Benefits. (Administrative Record ( AR ) 185). Plaintiff asserted that she became 8 disabled on September 23, 2002, due to an injury to her shoulders and neck, pain 9 in the arms and hands, diabetes, high blood pressure, depression, anxiety, 10 insomnia, pain in her knees and left shoulder, and cervical fusion. (AR 199). The 11 ALJ examined the medical record and heard testimony from plaintiff (who was 12 represented by counsel) on April 27, 2009. (AR 30-43). On July 20, 2009, the 13 ALJ determined that plaintiff was not disabled through December 31, 2007 (i.e., 14 plaintiff s date last insured ). (AR 64-71) 15 On March 18, 2010, the Appeals Council granted review, vacated the ALJ s 16 July 20, 2009 decision, and remanded the matter for further administrative 17 proceedings. (AR 74 76). The ALJ again examined the medical record and heard 18 testimony from plaintiff (who was represented by counsel) and a vocational expert 19 on July 2, 2010. (AR 44-58). 20 On August 26, 2010, the ALJ again determined that plaintiff was not 21 disabled through December 31, 2007.1 (AR 18-25). Specifically, the ALJ found 22 that through the date last insured: (1) plaintiff suffered from the following severe 23 impairments: cervical disc disease, status post C4-5-6 spinal fusion; impingement 24 syndrome, bilateral shoulders; bilateral elbow lateral epicondylitis; history of 25 lumbosacral sprain/strain; and history of nonverifiable left lower extremity 26 27 1 The ALJ stated that his July 20, 2009 decision was incorporated by reference into, and 28 supplemented by, his August 26, 2010 decision. (AR 18). 2 1 radiculitis with chronic left sacroiliac sprain (AR 20); (2) plaintiff suffered from 2 the following nonsevere impairments: obesity, depression, and anxiety (AR 20); 3 (3) plaintiff s impairments, considered singly or in combination, did not meet or 4 medically equal a listed impairment (AR 20); (4) plaintiff retained the residual 5 functional capacity to perform light work (20 C.F.R. § 404.1567(b)) with 6 additional nonexertional limitations2 (AR 21); (5) plaintiff could not perform her 7 past relevant work (AR 23); (6) there are jobs that exist in significant numbers in 8 the national economy that plaintiff could perform, specifically assembler, table 9 worker and packer/operator (AR 24); and (7) plaintiff s allegations regarding her 10 limitations were not credible to the extent they were inconsistent with the ALJ s 11 residual functional capacity assessment (AR 23). 12 On May 24, 2012, the Appeals Council granted plaintiff s application for 13 review of the ALJ s August 26, 2010 decision and essentially affirmed the ALJ s 14 determination that plaintiff was not disabled through December 31, 2007. (AR 315 5, 7). Specifically, the Appeals Council: (1) agreed with the ALJ s findings at 16 steps 1, 3, 4 and 5 of the sequential evaluation process (i.e., that plaintiff (a) had 17 not engaged in substantial gainful activity since September 23, 2002; (b) had 18 severe impairments which did not meet or equal in severity a listed impairment; 19 (c) was unable to return to her past relevant work; and (d) was capable of 20 performing other jobs in the national economy) (AR 3); (2) found that through the 21 date last insured plaintiff suffered from the following severe impairments: status 22 post C4-5-6 spinal fusion, impingement syndrome (bilateral shoulder), bilateral 23 elbow lateral epicondylitis, history of lumbosacral sprain/strain, obesity, and 24 history of nonverifiable left lower extremity radiculitis with chronic left sacroiliac 25 /// 26 27 28 2 The ALJ determined that plaintiff could perform light work as defined in 20 C.F.R. § 404.1567(b), but with occasional pushing or pulling with both arms, frequent reaching, and no above-shoulder level work with both arms. (AR 21). 3 1 sprain (AR 4);3 (3) adopted the ALJ s finding that plaintiff retained the residual 2 functional capacity to perform a reduced range of light work (AR 4, 7) (citing ALJ 3 Finding 5, page 4 [AR 21]);4 and (4) using Rule 201.10 of the Medical-Vocational 4 Guidelines as a framework, found that there are other jobs in the national economy 5 that plaintiff could perform (AR 4). 6 The Appeals Council s decision constituted the Commissioner s final 7 decision in plaintiff s case. See 20 C.F.R. § 404.981; Debbs v. Astrue, 2012 WL 8 5544077, *13 n.9 (E.D. Cal. Nov. 14, 2012) (The Appeals Council s decision 9 becomes the final decision of the Commissioner where the Appeals Council grants 10 review and issues a decision on the merits.) (citing Russell v. Brown, 856 F.2d 81, 11 83-84 (9th Cir. 1988)). 12 III. APPLICABLE LEGAL STANDARDS 13 A. 14 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 15 unable to engage in any substantial gainful activity by reason of any medically 16 determinable physical or mental impairment which can be expected to result in 17 death or which has lasted or can be expected to last for a continuous period of not 18 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 19 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 20 impairment must render the claimant incapable of performing the work claimant 21 previously performed and incapable of performing any other substantial gainful 22 3 23 24 25 26 27 28 Unlike the ALJ, the Appeals Council also found obesity to be one of plaintiff s severe impairments. (AR 3-4). The Appeals Council concluded, however, that plaintiff s obesity did not impose limitations on plaintiff s ability to work beyond those already accounted for in the ALJ s residual functional capacity assessment for plaintiff. (AR 3-4). 4 Specifically, the Appeals Council determined that plaintiff (i) could lift and carry 20 pounds occasionally and 10 pounds frequently; (ii) could stand for six hours in an eight-hour workday and sit for less than six hours in an eight-hour workday; (iii) could occasionally push or pull with both arms; (iv) could frequently reach; and (v) could not perform work above shoulder level with both arms. (AR 4, 7) (citing ALJ Finding 5, page 4 [AR 21]). 4 1 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 2 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 4 sequential evaluation process: 5 (1) 6 7 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 8 the claimant s ability to work? If not, the claimant is not 9 disabled. If so, proceed to step three. 10 (3) Does the claimant s impairment, or combination of 11 impairments, meet or equal an impairment listed in 20 C.F.R. 12 Part 404, Subpart P, Appendix 1? If so, the claimant is 13 disabled. If not, proceed to step four. 14 (4) Does the claimant possess the residual functional capacity to 15 perform claimant s past relevant work? If so, the claimant is 16 not disabled. If not, proceed to step five. 17 (5) Does the claimant s residual functional capacity, when 18 considered with the claimant s age, education, and work 19 experience, allow the claimant to adjust to other work that 20 exists in significant numbers in the national economy? If so, 21 the claimant is not disabled. If not, the claimant is disabled. 22 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 23 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 24 1110 (same). 25 The claimant has the burden of proof at steps one through four, and the 26 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 27 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 28 /// 5 1 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 2 proving disability). 3 B. 4 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 5 benefits only if it is not supported by substantial evidence or if it is based on legal 6 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 7 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 8 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 9 mind might accept as adequate to support a conclusion. Richardson v. Perales, 10 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 11 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 12 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 13 To determine whether substantial evidence supports a finding, a court must 14 consider the record as a whole, weighing both evidence that supports and 15 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 16 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 17 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 18 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 19 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 20 IV. DISCUSSION 21 Plaintiff asserts that the ALJ erred at step five because the requirements of 22 the representative jobs identified by the vocational expert exceed plaintiff s 23 abilities. (Plaintiff s Motion at 4-6). The Court agrees that in the Appeals 24 Council s May 24, 2012 decision, the Commissioner erred in finding at step five 25 of the sequential evaluation process that plaintiff was capable of performing work 26 that is available in significant numbers in the national economy. As the Court 27 cannot find that the error was harmless, a remand is warranted. 28 /// 6 1 A. 2 At step five of the sequential evaluation process, the Commissioner has the Pertinent Law 3 burden to demonstrate that the claimant can perform some other work that exists in 4 significant numbers in the national economy, taking into account the claimant s 5 residual functional capacity, age, education, and work experience. Tackett, 180 6 F.3d at 1100 (citing 20 C.F.R. § 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). The 7 Commissioner may satisfy this burden, depending upon the circumstances, by 8 obtaining testimony from an impartial vocational expert or by reference to the 9 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 10 Appendix 2 (commonly known as the Grids ). Tackett, 180 F.3d at 1100-01 11 (citations omitted). 12 13 1. Vocational Expert Testimony At an administrative hearing, an ALJ may seek testimony from a vocational 14 expert as to (1) what jobs the claimant, given his or her residual functional 15 capacity, would be able to do; and (2) the availability of such jobs in the national 16 economy. Tackett, 180 F.3d at 1101. The vocational expert s testimony may 17 constitute substantial evidence of a claimant s ability to perform work which 18 exists in significant numbers in the national economy when the ALJ poses a 19 hypothetical question that accurately describes all of the limitations and 20 restrictions of the claimant that are supported by the record. See Tackett, 180 F.3d 21 at 1101; see also Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) ( If the record 22 does not support the assumptions in the hypothetical, the vocational expert s 23 opinion has no evidentiary value. ). 24 ALJs routinely rely on the Dictionary of Occupational Titles ( DOT ) in 25 determining the skill level of a claimant s past work, and in evaluating whether the 26 claimant is able to perform other work in the national economy. Terry v. 27 Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 28 20 C.F.R. § 404.1566(d)(1) (DOT is source of reliable job information). The DOT 7 1 is the presumptive authority on job classifications. Johnson v. Shalala, 60 F.3d 2 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a vocational expert s 3 testimony regarding the requirements of a particular job without first inquiring 4 whether the testimony conflicts with the DOT, and if so, the reasons therefor. 5 Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing Social 6 Security Ruling 00-4p). In order for an ALJ to accept vocational expert testimony 7 that contradicts the DOT, the record must contain persuasive evidence to support 8 the deviation. Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001) (quoting 9 Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation may be 10 either specific findings of fact regarding the claimant s residual functionality, or 11 inferences drawn from the context of the expert s testimony. Light v. Social 12 Security Administration, 119 F.3d 789, 793 (9th Cir.), as amended (1997) 13 (citations omitted). 14 15 2. The Grids There are strict limits on when the Commissioner may use the Grids to 16 satisfy his burden at step five. Desrosiers v. Secretary of Health & Human 17 Services, 846 F.2d 573, 578 (9th Cir. 1988) (Pregerson, J., concurring). An ALJ 18 may rely on the Grids, rather than seek vocational expert testimony, only when the 19 Grids completely and accurately represent a claimant s limitations. Tackett, 180 20 F.3d at 1101 (emphasis in original); see also Holohan v. Massanari, 246 F.3d 21 1195, 1208 (9th Cir. 2001) ( If the grids accurately and completely describe a 22 claimant s impairments, an ALJ may apply the grids instead of taking testimony 23 from a vocational expert. ) (citation omitted). The Grids completely and 24 accurately represent a claimant s limitations only when the claimant retains the 25 ability to perform the full range of jobs in a given [exertional] category, i.e., 26 sedentary work, light work, or medium work. Tackett, 180 F.2d at 1101 27 (emphasis in original). Thus, for example, when a claimant suffers only exertional 28 (strength-related) limitations, the ALJ must consult the Grids. Lounsburry v. 8 1 Barnhart, 468 F.3d 1111, 1115 (9th Cir.), as amended (2006). Conversely, when a 2 claimant suffers only non-exertional limitations, the Grids (which are predicated 3 solely on a claimant s exertional limitations) are generally inappropriate and the 4 ALJ must rely on other evidence. Id. 5 The mere allegation that a claimant has non-exertional limitations, however, 6 does not preclude the use of the Grids. Desrosiers, 846 F.2d at 577. Where, like 7 here, a claimant suffers from both exertional and non-exertional limitations, the 8 ALJ must first determine whether the Grids mandate a finding of disability with 9 respect to exertional limitations alone. See Lounsburry, 468 F.3d at 1116; Cooper 10 v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). If so, the claimant must be 11 awarded benefits. Cooper, 880 F.2d at 1155. If not, a vocational expert s 12 testimony is not required unless the ALJ determines that a claimant s 13 non-exertional limitations are sufficiently severe so as to significantly limit the 14 range of work permitted by the claimant s exertional limitations (i.e., the 15 claimant s non-exertional limitations prevent the claimant from being able to 16 perform the full range of sedentary, light, or medium work). See Burkhart v. 17 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (citation omitted) (when 18 non-exertional limitations significantly limit the range of work permitted by the 19 claimant s exertional limitations . . . the Secretary must take the testimony of a 20 vocational expert . . . and identify specific jobs within the claimant s 21 capabilities. ) (citations omitted); see also Hoopai v. Astrue, 499 F.3d 1071, 1076 22 (9th Cir. 2007) (An ALJ is required to seek the assistance of a vocational expert 23 when the non-exertional limitations are at a sufficient level of severity such as to 24 the make the Grids inapplicable to the particular case.) (citing id.); Desrosiers, 846 25 F.2d at 577 ( A non-exertional impairment, if sufficiently severe, may limit the 26 claimant s functional capacity in ways not contemplated by the guidelines. In 27 /// 28 /// 9 1 such a case, the guidelines would be inapplicable. ).5 It is within the ALJ s 2 province to determine whether a claimant s non-exertional limitations are 3 sufficiently severe such that testimony from a vocational expert would be required 4 at step five. Sam v. Astrue, 2010 WL 4967718, at *11 (E.D. Cal. Dec. 1, 2010) 5 (citing Desrosiers, 846 F.2d at 577). 6 B. 7 Here, the Court cannot conclude that the Appeals Council s non-disability Analysis 8 determination at step five is supported by substantial evidence and free of material 9 error. 10 To the extent the Appeals Council relied solely on Rule 202.10 of the Grids 11 to conclude that there was a significant number of jobs in the national economy 12 which [plaintiff] could perform (AR 4), its non-disability determination at step 13 five was based on legal error. The Appeals Council essentially adopted the ALJ s 14 residual functional capacity assessment and found that, after accounting for any 15 limitations related to plaintiff s obesity (i.e., the additional severe impairment 16 found by the Appeals Council), plaintiff retained the ability to perform a reduced 17 range of light work. (AR 4) (emphasis added). The Appeals Council reiterated 18 that [plaintiff s] exertional and non-exertional impairments do not allow her to 19 perform the full range of the light exertional level. (AR 4) (emphasis added). In 20 light of such findings, the Appeals Council was required to obtain testimony from 21 a vocational expert to satisfy the Commissioner s burden at step five. See, e.g., 22 Tackett, 180 F.3d at 1101-02 (ALJ may rely on Grids alone at step five only when 23 claimant [is] able to perform the full range of jobs in a given [exertional] 24 category. . . . ) (emphasis in original); Burkhart, 856 F.2d at 1340 (ALJ may rely 25 solely on the Grids [only] where the predicate for using the grids the ability to 26 27 5 The severity of limitations at step five that would require use of a vocational expert must 28 be greater than the severity of impairments determined at step two. Hoopai, 499 F.3d at 1076. 10 1 perform a full range of either medium, light or sedentary activities is [] 2 present. ). The failure to do so was error. See, e.g., Burkhart, 856 F.2d at 1341 3 (ALJ s determination at step five that there was a sufficient number of jobs which 4 claimant could do was both lacking in evidentiary support and made contrary to 5 the standard procedure where ALJ had determined that claimant could not 6 perform the full range of sedentary or light work due to significant mental and 7 manipulative nonexertional limitations, yet failed to obtain the testimony of a 8 vocational expert). 9 Even assuming that the Appeals Council adopted the ALJ s analysis at step 10 five (AR 3-4), the Appeals Council s non-disability determination based thereon 11 was, nonetheless, not supported by substantial evidence. Although the ALJ did 12 seek the assistance of a vocational expert at the July 2, 2010 hearing, the ALJ s 13 determination at step five that plaintiff was not disabled was erroneously based on 14 testimony from the vocational expert which, without any explanation, deviated 15 from the DOT. 16 First, the vocational expert s testimony was inconsistent with the DOT. In 17 his hypothetical question to the vocational expert, the ALJ included, among 18 others, a limitation to jobs that would require no more than occasional pushing and 19 pulling with both arms. (AR 54). The vocational expert testified that, in spite of 20 such limitation, plaintiff (or a hypothetical person with plaintiff s characteristics) 21 could perform the occupations of assembler, table worker, and packer/operator 22 each of which, according to the DOT, require frequent to constant pushing and/or 23 pulling. (AR 54-55); DOT §§ 731.687-034 ( Toy Assembler ), 739.387-182 24 ( Table Worker ), 920.685-082 ( Packer Operator, Automatic ). It appears that 25 an individual who is limited to only occasional pushing and pulling with both 26 arms, however, would be precluded from such jobs. 27 Second, since neither the ALJ nor the vocational expert acknowledged that 28 there was any conflict between the DOT and the vocational expert s testimony 11 1 regarding the requirements of any of the three representative jobs (AR 53-56), 2 neither the vocational expert nor the ALJ provided any persuasive explanation for 3 the deviation. Accordingly, the vocational expert s testimony, which the ALJ 4 adopted, could not serve as substantial evidence supporting the ALJ s 5 determination at step five that plaintiff could perform the occupations of 6 assembler, table worker, and packer/operator. Pinto, 249 F.3d at 846. It follows 7 that the Appeals Council s non-disability determination at step five was also not 8 supported by substantial evidence to the extent it relied on the ALJ s unsupported 9 findings. 10 Finally, the Court cannot find the error harmless as defendant points to no 11 other persuasive evidence in the record which could support the Appeals 12 Council s determination at step five that plaintiff was not disabled. See, e.g., id. at 13 846-47 (remand warranted where ALJ found claimant not disabled at step four 14 based largely on vocational expert s testimony that conflicted with DOT, neither 15 ALJ nor vocational expert addressed the deviation, and ALJ otherwise made very 16 few findings ); cf. Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) 17 (ALJ erred in finding that claimant could return to past relevant work based on 18 vocational expert s testimony that deviated from DOT because ALJ did not 19 identify what aspect of the [vocational expert s] experience warranted deviation 20 from the DOT, and did not point to any evidence in the record other than the 21 [vocational expert s] sparse testimony to support the deviation, but error was 22 harmless in light of ALJ s alternative finding at step five, which was supported by 23 substantial evidence, that claimant could still perform other work in the national 24 and local economies that existed in significant numbers). 25 /// 26 /// 27 /// 28 /// 12 1 V. CONCLUSION6 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.7 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: February 15, 2013 7 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6 23 24 25 26 27 28 The Court need not, and has not adjudicated plaintiff s other challenges to the Commissioner s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 7 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 13
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