Maria H. Gutierrez v. Michael J. Astrue, No. 5:2012cv01845 - Document 17 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: This Memorandum and Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded for further hearing consistent with this Memo Opinion. (rh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MARIA H. GUTIERREZ, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-01845-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issue: 28 1. Whether there is a DOT inconsistency in the Administrative 1 Law Judge s ( ALJ ) holding that Plaintiff can perform the 2 jobs 3 operator. (JS at 3.) of maid, electronic worker, and packing machine 4 5 This Memorandum Opinion will constitute the Court s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes 8 Commissioner must be reversed and the matter remanded for further 9 hearing. that for the reasons set forth, the decision of the 10 11 I 12 THE ALJ FAILED TO ASCERTAIN WHETHER THE VOCATIONAL EXPERT 13 DEVIATED FROM DOT REQUIREMENTS IN IDENTIFYING AVAILABLE JOBS 14 AT STEP FIVE OF THE SEQUENTIAL EVALUATION PROCESS 15 Plaintiff contends there is a Dictionary of Occupational Titles 16 ( DOT ) inconsistency in the ALJ s determination at Step Five that 17 Plaintiff can perform the jobs of maid, electronic worker and packing 18 machine operator. 19 At the hearing (AR 36-44), the ALJ utilized a vocational expert 20 ( VE ). Prior to posing a hypothetical, the ALJ instructed the VE to 21 testify according to the DOT or explain why you re not testifying 22 according to the [DOT] and state what your testimony is based upon. 23 (AR 24.) 24 concerned an individual who, in pertinent part, has the extertional 25 ability to perform light work with restrictions, with nonexertional 26 limitations to simple, repetitive tasks, no public contact, only non- 27 intense contact with coworkers and supervisors, no jobs requiring 28 hypervigilance and no jobs in which he is responsible for the safety The VE agreed to do that (Id.). 2 The ALJ s hypothetical 1 of others. (AR 62.) 2 Based on this hypothetical, the VE testified that Plaintiff could 3 not perform any jobs constituting her past relevant work, and had no 4 transferrable skills. 5 could perform, including maid (DOT 323.687-014); electronic worker 6 (DOT 726.687-010); and packing machine operator (DOT 920.685-078). (AR 7 25.) The VE did identify three jobs which Plaintiff 8 In her Decision, the ALJ adopted the VE s testimony and found 9 that Plaintiff can perform these three jobs, and she noted that 10 pursuant to Social Security Ruling ( SSR ) 00-4p, The vocational 11 expert s testimony is consistent with the information contained in the 12 [DOT]. (AR 30.) 13 14 A. Applicable Law and Analysis. 15 As assessed by Plaintiff, the error in this case inheres in the 16 unexplained deviation between the Dictionary of Occupational Titles 17 ( DOT ) requirements of the identified jobs, and the VE s testimony, 18 given the limitations of the hypothetical, that Plaintiff could 19 perform these jobs. 20 deviation between the DOT and the testimony of the VE, and that the 21 ALJ did not solicit an explanation from the VE to allow for such 22 deviation. 23 source on which the ALJ may rely when evidence of record supports the 24 deviation (JS at 8, citing Light v. Social Sec. Admin., 119 F.3d 789, 25 at 753; Johnson v. Shalala, 60 F.3d 1928, 1435-36 (9th Cir. 1995). Plaintiff argues that there is a conflict and The Commissioner argues that the DOT is a rebuttable 26 SSR 00-4p specifically provides 27 evidence about the 28 adjudicator has an affirmative responsibility to ask about possible requirements 3 of that a when job or a [VE] provides occupation, the 1 conflict between that [VE] ... evidence and information provided in 2 the [DOT]. 3 Rulings are binding precedent. (See 20 C.F.R. §402.35(b)(1).) Social Security Regulations mandate that Social Security 4 Although, as noted, the ALJ in this case instructed the VE to 5 testify according to the DOT, and obtained the VE s agreement to do 6 so, that pro forma interchange, which corresponds to the requirements 7 of SSR 00-4p, does not fully discharge the ALJ s obligation. 8 Commissioner 9 contradicts concedes, the DOT an only ALJ when may rely evidence on of VE As the testimony record supports that the 10 deviation. (JS at 8.) 11 established principle, he then veers from it by later arguing that, 12 the VE was clearly aware of the ALJ s limitation to non-public work 13 and 14 occupations [maid and electronics worker] that such a person could 15 perform. (JS at 9, citing AR 62.) 16 proposes that if given a proper hypothetical, a VE s identification of 17 available jobs must be accepted by the ALJ, even if there is an 18 unexplained DOT deviation. 19 case, when the ALJ agreed with the VE s identification of a job which 20 requires medium exertion (packing machine operator) as being within 21 Plaintiff s residual functional capacity ( RFC ) (see Decision, AR at 22 30.) 23 requires a level of exertion in excess of that available to Plaintiff; 24 yet, the Commissioner still argues that, However, the VE is just that 25 - an expert - and he would know if this occupation could also be 26 performed at the light exertional level. (JS at 9.) 27 speculate if the VE would still have identified this job is he were 28 aware (as he should have been) that it required medium exertion, or, no Although the Commissioner cites this well- hypervigilance, The VE clearly and nevertheless suggested these two Effectively, this argument In fact, that is what occurred in this erred in identifying this job, because it 4 One can only 1 whether he would have provided some explanation for the deviation. 2 The record provides no evidence of this, and the Commissioner is left 3 to argue that the VE must have factored in some unstated reasons why 4 this occupation could be performed by the Plaintiff. 5 The VE s misidentification of the job of packing machine operator 6 as being within the given hypothetical limitation to light work gives 7 pause 8 testimony. 9 erroneously, it was harmless error. (JS at 9.) to the Court as to the overall reliability of the VE s The Commissioner asserts that if this job was identified That argument is 10 rejected; no explanation for the obvious deviation was given. But 11 Plaintiff 12 identified. 13 that to perform this occupation, a person must, in combination, 14 perform any of certain tasks, which include rendering personal 15 assistance 16 encompasses 17 restaurants, clubs, beauty parlors and dormitories. 18 does not pretend that is has expertise in this area, nevertheless, it 19 is difficult to conceive that a maid who works in a commercial 20 establishment can perform that job without any interaction with the 21 public. 22 simple, repetitive tasks. 23 should have been explained. also makes persuasive points about the other jobs With regard to the job of maid, the DOT requirements are to patrons. work in The job commercial description identifies establishments such that as it hotels, While the Court Yet, this Plaintiff was specifically limited to non-public, There may well be a deviation here which 24 The other job identified, that of electronics worker, requires 25 that the individual must clean[s] and degloss[es] parts, using 26 cleaning devices, solutions, and abrasives. (DOT 726-687-010.) 27 occupation also requires that the individual apply primers, plastics, 28 adhesives, and other coatings to 5 designated surfaces, This using 1 applicators, such as spray guns, brushes, or rollers. (Id.) 2 Considering that the ALJ limited Plaintiff to work which precludes 3 hypervigilance (AR 23), a fair and substantial question arises 4 whether the job requirements of an electronics worker may require 5 hypervigilance. 6 provided in the VE s testimony. Yet, no explanation for this apparent deviation was 7 Because of the errors which the Court has identified, the 8 Commissioner s Decision will be reversed, and the matter will be 9 remanded for further hearing consistent with this Memorandum Opinion. 10 IT IS SO ORDERED. 11 12 13 DATED: June 27, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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