John Garcia II v. Carolyn W. Colvin, No. 5:2012cv01365 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The ALJ's decision is reversed and the case is remanded to the Agency for further consideration. PLEASE REVIEW DOCUMENT FOR COMPLETE DETAILS. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOHN GARCIA II, Plaintiff, 11 12 13 14 ) ) ) ) ) ) ) ) ) ) ) ) v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 Case No. ED CV 12-1365-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his applications for Disability 20 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ). 21 He claims that the Administrative Law Judge ( ALJ ) erred when she 22 relied on the vocational expert s testimony that Plaintiff could work 23 as an electronics worker and parking lot attendant, despite the fact 24 that these jobs require frequent reaching and Plaintiff is not able to 25 reach overhead. 26 exposure to hazards precludes him from performing either job because 27 both involve hazardous conditions. 28 Plaintiff also complains that the ALJ s limitation on For the following reasons, the 1 ALJ s decision is reversed and the case is remanded to the Agency for 2 further consideration. 3 4 II. SUMMARY OF PROCEEDINGS In June 2008, Plaintiff applied for DIB and SSI, alleging that he 5 was disabled as of July 2007, due to a neck injury, diabetes, liver 6 disorder, respiratory disorder, and obesity. 7 ( AR ) 125-31, 147, 158, 161-62, 173-74.) 8 denied initially and on reconsideration, he requested and was granted 9 a hearing before an ALJ. (Administrative Record After his applications were (AR 69-85, 86-87.) On September 23, 2010, 10 he appeared with counsel at the hearing. 11 2011, the ALJ issued a decision denying benefits. 12 Plaintiff appealed to the Appeals Council, which denied review. 13 1-3, 10.) On January 4, (AR 15-23.) (AR This action followed. 14 15 (AR 28-68.) III. ANALYSIS Plaintiff contends that the ALJ s determination that he could 16 work as an electronics worker and parking lot attendant was 17 inconsistent with her finding that he had to avoid all hazards and was 18 unable to reach overhead with either arm. 19 the following reasons, the Court agrees and remands the case for 20 further consideration. 21 (Joint Stip. at 3-8.) For Once a disability claimant has established that he can no longer 22 perform his past work, the burden shifts to the Agency to show that he 23 can perform other jobs that exist in substantial numbers in the 24 national economy. 25 2009). 26 vocational expert. 27 1999). 28 required to insure that the vocational expert s testimony is Bray v. Astrue, 554 F.3d 1219, 1223 (9th Cir. To meet this burden, the Agency can rely on the testimony of a Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. If the ALJ relies on a vocational expert, however, she is 2 1 consistent with the Dictionary of Occupational Titles ( DOT ) by 2 asking the vocational expert if there is a conflict. 3 Security Ruling ( SSR ) 00-4p; see also Massachi v. Astrue, 486 F.3d 4 1149, 1152-54 (9th Cir. 2007). 5 not rely on the vocational expert s testimony unless the vocational 6 expert is able to provide a reasonable explanation for the conflict. 7 SSR 00-4p; Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 8 9 See Social Where there is a conflict, the ALJ may The ALJ determined that Plaintiff was incapable of performing his past work as a diesel mechanic but could perform light work that did 10 not require exposure to hazards. (AR 18, 21.) The Agency s 11 definition of hazards includes moving mechanical parts of equipment, 12 tools, or machinery and exposure to toxic, caustic chemicals. 13 9p, 1996 WL 374185, *9. 14 despite these limitations, Plaintiff could perform the job of 15 electronics worker. 16 other things, power tools and toxic, caustic chemicals. 17 726.687-010.) 18 that Plaintiff could perform the job of electronics worker was in 19 direct conflict with the DOT. 20 vocational expert whether there was a conflict and Plaintiff s counsel 21 failed to prompt her to do so. 22 their parts requires remand so that the question can be asked and 23 answered. SSR 96- The vocational expert determined that, (AR 67.) This job requires working with, among (DOT No. Thus, it appears that the vocational expert s testimony Unfortunately, the ALJ did not ask the (AR 66-68.) This failure on both of 24 The electronics worker job also requires a worker to frequently 25 reach (DOT No. 726.687-010), which Plaintiff contends means reaching 26 in any direction under SSR 85-15. 27 ALJ restricted Plaintiff from reaching overhead, he argues that he is 28 precluded from working as an electronics worker. 3 (Joint Stip. at 5.) Because the The Agency counters 1 that reaching does not necessarily require reaching overhead and 2 points out that the Court has ruled to this effect in Rodriguez v. 3 Astrue, No. CV 07-2152-PJW, 2008 WL 2561961 (C.D. Cal. Jun. 25, 2008). 4 The Court agrees that in Rodriguez it did so hold but notes that 5 in Rodriguez the ALJ had asked the vocational expert if there was a 6 conflict with the DOT and the vocational expert testified that there 7 was none. 8 between the DOT and the vocational expert s testimony with regard to 9 the hazards, which was not the case in Rodriguez, and, therefore, the Here, the ALJ never inquired. Further, there is a conflict 10 Court does not have confidence in the ALJ s decision that it did in 11 that case. 12 Rodriguez to the case at bar. 13 For these reasons, the Court is unwilling to extend The second job that the vocational expert determined that 14 Plaintiff could perform was the job of parking lot attendant, DOT No. 15 915.473-010. 16 which Plaintiff contends he cannot do because he cannot reach 17 overhead. 18 between the DOT and the vocational expert s testimony and cites to the 19 Court s previous holding in Rodriguez to support its argument. 20 This job, too, requires an ability to frequently reach, The Agency, again, argues that there is no actual conflict Though it seems to defy common sense that a claimant s inability 21 to reach overhead would preclude him from working as a parking lot 22 attendant--which seems to involve only reaching in front or to the 23 side to hand a motorist a ticket or to take payment for parking--there 24 is, at the least, a potential conflict between the DOT and the 25 vocational expert s testimony and the vocational expert never weighed 26 in on the issue. 27 failure to ask the vocational expert if there was a conflict was 28 harmless. As such, the Court cannot conclude that the ALJ s See, e.g., Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 4 1 1050, 1055 (9th Cir. 2005) (explaining harmless error is error that is 2 inconsequential to ultimate nondisability determination). 3 reason, this issue, too, is remanded for further consideration.1 4 5 6 IV. For this CONCLUSION For these reasons, the ALJ s decision is reversed and the case is remanded to the Agency for further consideration. 7 IT IS SO ORDERED. 8 DATED: August 28, 2013. 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 S:\PJW\Cases-Social Security\GARCIA, 1365\Memorandum Opinion and Order.wpd 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff argues that the ALJ s limitation on working with hazards also prevents him from performing the parking lot attendant job because a parking lot attendant is required to prevent cars from being stolen and, in the event that someone tried to steal a car from Plaintiff s lot, he would be exposed to a hazardous situation, i.e., a car theft. (Joint Stip. at 7.) This argument is rejected out of hand. The possibility that someone could enter the workplace and commit a crime is, sadly, a potential hazard that all of us face, from parking lot attendants to judges to teachers. That possibility, however, is not enough to transform all work sites into hazardous environments under the DOT. As the Agency sets out in the brief, SSR 96-6p defines hazards as moving mechanical parts of equipment, tools, or machinery; electrical shock; working in high, exposed places; exposure to radiation; working with explosives; and exposure to toxic, caustic chemicals. 1996 WL 374185, at *9. There is nothing in the DOT description of job duties of parking lot attendant that suggests that a worker would be exposed to these types of hazards in that job. As such, this argument is rejected. 5
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