Quiana Norris v.Carolyn W Colvin, No. 5:2012cv01687 - Document 17 (C.D. Cal. 2013)

Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVEPROCEEDINGS by Magistrate Judge Robert N. Block, re Joint Stipulation for Social Security Cases 16 . (twdb)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 QUIANA NORRIS, ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social ) Security,1 ) ) Defendant. ) Case No. EDCV 12-1687 RNB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 17 18 19 20 21 The Court now rules as follows with respect to the one disputed issue listed in the Joint Stipulation, which is directed to the determination of the Administrative Law Judge ( ALJ ) that plaintiff was able to perform other work in the national economy, based on the testimony of the vocational expert ( VE ).2 22 23 1 The Acting Commissioner is hereby substituted as the defendant 24 pursuant to Fed. R. Civ. P. 25(d). No further action is needed to continue this case by reason of the last sentence of 42 U.S.C. § 405(g). 25 2 As the Court advised the parties in its Case Management Order, the 26 decision in this case is being made on the basis of the pleadings, the Administrative 27 Record ( AR ), and the Joint Stipulation ( Jt Stip ) filed by the parties. In 28 (continued...) 1 1 Where, as here, the testimony of a VE is used at step five of the sequential 2 evaluation process, the VE must identify a specific job or jobs in the national 3 economy having requirements that the claimant s physical and mental abilities and 4 vocational qualifications would satisfy. See Osenbrock v. Apfel, 240 F.3d 1157, 5 1162-63 (9th Cir. 2001); Burkhart v. Bowen, 856 F.2d 1335, 1340 n.3 (9th Cir. 6 1988); 20 C.F.R. §§ 404.1566(b), 416.966(b). However, the Dictionary of 7 Occupational Titles ( DOT ) is the Commissioner s primary source of reliable job 8 information and creates a rebuttal presumption as to a job classification. See 9 Johnson v. Shalala, 60 F.3d. 1428, 1434 n.6, 1435 (9th Cir. 1995); see also 10 Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). Accordingly, an ALJ 11 may rely on VE testimony that contradicts the DOT only insofar as the record 12 contains persuasive evidence to support the deviation. See Johnson, 60 F.3d at 1435; 13 see also Tommasetti, 533 F.3d at 1042; Light v. Social Sec. Admin., 119 F.3d 789, 14 793 (9th Cir. 1997). 15 Here, the ALJ determined that plaintiff had a residual functional capacity 16 ( RFC ) for a full range of work at all exertional levels but with the following non17 exertional limitations: no loud background noise; a requirement for one-to-one 18 listening/talking ability; no hearing required for safety; simple, repetitive tasks; no 19 interaction with the public; no tasks requiring hypervigilance; and no fast-paced 20 work. (See AR 19.) After taking the testimony of a VE, the ALJ determined that 21 plaintiff could perform the jobs of hand packager, cleaner/housekeeper, and 22 electronics worker. (See AR 24.) The ALJ found that the VE s testimony was 23 consistent with information contained in the DOT. (See id.) 24 25 2 (...continued) accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has 27 determined which party is entitled to judgment under the standards set forth in 42 28 U.S.C. § 405(g). 26 2 1 A. The Commissioner s Preliminary Contentions 2 Preliminarily, the Commissioner makes three contentions in defense of the 3 ALJ s step five determination, each of which the Court rejects. First, the 4 Commissioner contends that since plaintiff failed to challenge the VE s testimony at 5 the administrative hearing, it was proper for the ALJ to rely on that testimony under 6 Wentz v. Commissioner Social Sec. Admin., 401 Fed. Appx. 189, 191 (9th Cir. 7 2010). (See Jt Stip at 7.) In Wentz, the Ninth Circuit found that an ALJ s reliance 8 on a VE s testimony was proper where the ALJ asked the VE to identify any conflicts 9 between her testimony and the DOT, the VE identified no such conflicts, and the 10 claimant s attorney cross-examined the VE but did not challenge her representation 11 that her testimony comported with the DOT. See id. The Court finds that Wentz is 12 distinguishable because it fails to address the ALJ s obligations in cases where, as in 13 this case, there is in fact a potential conflict between the VE s testimony and the 14 DOT. In such cases, the ALJ must determine whether the expert s testimony 15 deviates from the Dictionary of Occupational Titles and whether there is a reasonable 16 explanation for any deviation. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th 17 Cir. 2007). The ALJ did not make such determinations here. 18 Second, the Commissioner contends that, assuming there was a potential 19 conflict between the VE s testimony and the DOT, there was persuasive evidence to 20 support the deviation because the VE identified jobs that were available locally, 21 rather than only nationally. (See Jt Stip at 7 n.2.) However, the Court notes that the 22 VE s identification of jobs in the local market by itself does not constitute persuasive 23 evidence. Instead, the VE s testimony must also match the specific requirements of 24 such jobs with a claimant s limitations. See Johnson, 60 F.3d at 1435 ( Here, there 25 was persuasive testimony of available job categories in the local rather than the 26 national market, and testimony matching the specific requirements of a designated 27 occupation with the specific abilities and limitations of the claimant. ) (emphasis 28 added). There was no such testimony here. 3 1 Third, the Commissioner contends that, assuming none of the three jobs 2 identified by the ALJ could be performed by a person with plaintiff s limitations, 3 there still was substantial evidence to support the step five determination because the 4 VE identified a fourth job, office helper, which plaintiff does not challenge. (See Jt 5 Stip at 12-13.) However, the ALJ did not find that plaintiff was able to perform the 6 office helper job. Because the ALJ did not rely on this reason to support his 7 determination of non-disability, the Court is unable to consider it. See Connett v. 8 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Ceguerra v. Sec y of Health and Human 9 Svcs., 933 F.2d 735, 738 (9th Cir. 1991). 10 11 B. The ALJ s step five determination 12 As discussed below, the Court finds and concludes that the ALJ could not 13 properly rely on the VE s testimony because, with respect to each of the three jobs 14 used to support the ALJ s step five determination, there was a conflict between the 15 VE s testimony and the DOT, and there was not persuasive evidence to support the 16 deviation. 17 18 1. Hand packager 19 The job of hand packager (DOT No. 920.587-018) entails a noise level that is 20 rated loud. The Court finds that this condition conflicts with plaintiff s limitation 21 to no loud background noise. 22 Although the Commissioner points out that the VE testified that none of the 23 jobs she identified would entail loud background noise (see Jt Stip at 12; see also AR 24 63), this does not constitute persuasive evidence to support the deviation. The VE s 25 brief and generic testimony about background noise failed to match the specific 26 requirements of the hand packager job with plaintiff s limitations and was insufficient 27 to provide a reasonable basis for relying on the VE s testimony. See Tommasetti, 533 28 F.3d at 1042 (VE s brief and indefinite testimony was insufficient to support 4 1 deviation from DOT where ALJ did not identify what aspect of the VE s experience 2 warranted deviation from the DOT and did not point to any evidence in the record 3 other than the VE s sparse testimony for the deviation).3 4 5 2. Cleaner/housekeeper 6 The job of cleaner/housekeeper (DOT No. 323.687-014) entails a duty to 7 render personal assistance to patrons. The Court finds that this requirement conflicts 8 with plaintiff s limitation to no interaction with the public. See Pardue v. Astrue, 9 2011 WL 5520301, at *4 (C.D. Cal. Nov. 14, 2011) (finding inconsistency between 10 DOT description of cleaner job and plaintiff s limitation to no public contact); Barton 11 v. Astrue, 2012 WL 5457462, at *3 (C.D. Cal. Nov. 8, 2012) (same). 12 The Commissioner contends that there is no conflict because the fifth digit of 13 the DOT code for the cleaner/housekeeper job, which signifies the job s relationship 14 to People, indicates the lowest possible rating for dealing with people. (See Jt Stip 15 at 9.) Specifically, the fifth digit of the DOT code for the cleaner/housekeeper job 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court further notes that the VE s sparse testimony and the ALJ s lack of specific findings in support of his step five determination make it difficult for the Court to review the ALJ s determination. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (commenting that where the ALJ made very few findings and relied largely on the conclusions of the vocational expert, it is difficult for this Court to review his decision ). Moreover, it is well-established that the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant s interests are considered, and that this special duty exists even when the claimant is represented by counsel. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); see also Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) ( An ALJ s duty to develop the record further is triggered . . . when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. ). In the Court s view, the ALJ failed in his duty to properly develop the record when he did not follow up on the VE s testimony that none of the jobs she identified would entail loud background noise, when such testimony clearly conflicted with what was stated in the DOT regarding the hand packager job. 5 1 (DOT No. 323.687-014), which is an 8, addresses Taking Instructions - Helping 2 and expressly requires Attending to the work assignment instructions or orders of 3 supervisor. (No immediate response required unless clarification of instructions or 4 orders is needed.) Helping applies to non-learning helpers. 4 However, the Court 5 notes that this information about the relevant DOT code, which only addresses the 6 ability to take instructions from a supervisor and to provide help at a non-learning 7 level, fails to address plaintiff s separate limitation to no interaction with the public. 8 See Liveoak v. Astrue, 2013 WL 183710, at *15 (N.D. Okla. Jan. 17, 2013) (finding 9 that fifth digit of DOT Code of eight signifies possible contact with co-workers or 10 supervisors, not the general public). Accordingly, the Court rejects the 11 Commissioner s argument that there was no conflict between the VE s testimony and 12 the DOT with respect to the cleaner/housekeeper job because of the relevant portion 13 of the DOT code. 14 Moreover, the record does not contain any evidence, much less persuasive 15 evidence, to support the deviation with respect to the cleaner/housekeeper job. 16 17 3. Electronics Worker 18 The job of electronics worker (DOT No. 726.687-010) entails exposure to toxic 19 caustic chemicals, a condition that exists occasionally. The Court finds that this 20 requirement conflicts with plaintiff s limitation to no tasks requiring hypervigilance. 21 See Oviatt v. Astrue, 2012 WL 680347, at *5 (C.D. Cal. Feb. 29, 2012) (finding 22 conflict between DOT description of electronic worker job and plaintiff s limitation 23 to no hypervigilance). 24 The Commissioner contends that there is no conflict because the sixth digit of 25 the DOT code for the electronics worker job, which signifies the job s relationship 26 to Things, indicates that there is little or no latitude for judgment with respect to 27 28 4 See http://www.occupationalinfo.org/appendxb_1.html. 6 1 things. (See Jt Stip at 11.) Specifically, the sixth digit of the DOT code for the 2 electronics worker job (DOT No. 726.687-010), which is a 7, addresses Handling 3 and expressly requires Using body members, handtools, and/or special devices to 4 work, move, or carry objects or materials. Involves little or no latitude for judgment 5 with regard to attainment of standards or in selecting appropriate tool, object, or 6 materials. However, the Court notes that this information about the relevant DOT 7 code, which only addresses the type of handling that is involved in the electronics 8 worker job, fails to address plaintiff s separate limitation against exercising 9 hypervigilance to avoid things that are potentially harmful, such as toxic caustic 10 chemicals. Accordingly, the Court rejects the Commissioner s argument that there 11 was no conflict between the VE s testimony and the DOT with respect to the 12 electronics worker job because of the relevant portion of the DOT code. 13 Moreover, the record does not contain any evidence, much less persuasive 14 evidence, to support the deviation with respect to the electronics worker job. 15 16 17 CONCLUSION AND ORDER The law is well established that the decision whether to remand for further 18 proceedings or simply to award benefits is within the discretion of the Court. See, 19 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at 20 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted 21 where additional administrative proceedings could remedy defects in the decision. 22 See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 23 635. Remand for the payment of benefits is appropriate where no useful purpose 24 would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 25 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 26 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily 27 delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 28 // 7 1 The Court has concluded that this is not an instance where no useful purpose 2 would be served by further administrative proceedings; rather, additional 3 administrative proceedings still could remedy the defects in the ALJ s decision. 4 Accordingly, IT IS HEREBY ORDERED that, pursuant to sentence four of 42 5 U.S.C. § 405(g), Judgment be entered reversing the decision of the Commissioner of 6 Social Security and remanding this matter for further administrative proceedings.5 7 8 DATED: July 11, 2013 9 10 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 It is not the Court s intent to limit the scope of the remand. 8

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