Jorge Jaramillo v. Carolyn W Colvin, No. 5:2013cv00681 - Document 17 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 JORGE JARAMILLO, Plaintiff, 11 v. 12 13 14 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY 1/ ADMINISTRATION, 15 Defendant. 16 17 18 19 20 21 Jorge Jaramillo ( Plaintiff ) challenges the Social Security Commissioner s decision denying his application for disability benefits. Plaintiff contends that the Administrative Law Judge ( ALJ ) failed to consider Plaintiff s limited ability to communicate in English in his step-five determination. (Joint Stip. at 3-13.) The Court agrees with Plaintiff for the reasons discussed below. 22 A. 23 26 An ALJ Must Consider a Claimant s Ability to Communicate in English in his Step-Five Determination 24 25 ) Case No. ED CV 13-0681 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) A claimant is disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less 27 28 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 than twelve months. 42 U.S.C. § 423(d)(1)(A) (1982). The burden rests with the 2 claimant to show that he is disabled in the first four steps of the disability analysis. 3 Hoffman v. Heckler, 785 F.2d 1423, 1424 (9th Cir. 1986). However, once a claimant 4 establishes a prima facie case that a severe impairment prevents him from 5 performing his past work, at step five, the burden of proof shifts to the Secretary to 6 show that the claimant can do other kinds of work. 2/ Embrey v. Bowen, 849 F.2d 7 418, 422 (9th Cir. 1988); see also Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 8 1996). An ALJ must consider a claimant s ability to communicate in English at step 9 10 five when evaluating whether he or she can perform a given job. 20 C.F.R § 11 416.964(b)(5).3/ Once the vocational expert ( VE ) proposes a particular position, 12 an ALJ is required to address the language requirement, make a factual finding as 13 to whether Plaintiff could meet it, and set forth the basis for his finding in his 14 decision. Guzman v. Astrue, 2010 WL 1929563, at *1 (C.D. Cal. May 10, 2010); 15 see Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) ( To rely on a job 16 description in the [Dictionary of Occupational Titles ( DOT )] that fails to comport 17 with a claimant s noted limitations, the ALJ must defi 18 nitively explain this deviation. ). While a claimant is not per se disabled if he cannot communicate in English, 19 20 Pinto, 249 F.3d at 847, the failure to consider language deficiencies in conjunction 21 with a claimant s physical limitations is an error of law, even in cases where those 22 physical problems do not themselves amount to a disability as defined by the Act. 23 Karp v. Schweiker, 539 F. Supp. 217, 220 (N.D. Cal. 1982) (citing Benitez v. 24 25 26 27 2/ Because literacy, or education level, is relevant only to this latter inquiry and not to the existence of a disability, it follows that the Commissioner bears the burden of establishing this factor. Silveira v. Apfel, 204 F.3d 1257, 1261 n.14 (9th Cir. 2000). 3/ It generally doesn t matter what other language a person may be fluent in. 20 C.F.R § 28 404.1564(b)(5). 2 1 Califano, 573 F.2d 653 (9th Cir. 1978)); see Calderon v. Astrue, 2009 WL 379008, 2 at *10 (E.D. Cal. Nov. 10, 2010) (finding error where ALJ concluded that claimant 3 could communicate in English at a sufficient level without determining what 4 claimant meant when he said that he can read and write a little bit in English); 5 Rodriguez v. Astrue, 2013 WL 458176, at *2-3 (C.D. Cal. Feb. 5, 2013) (burden not 6 met even though claimant had been in the United States since 1972, had some 7 education in the United States, and could speak English a little bit ). 8 B. The ALJ Failed to Address Plaintiff s Language Limitations in his Step-Five Determination 9 In this case, the ALJ failed to address whether Plaintiff met Language Level 10 11 14/ as required for those positions identified by the VE. Plaintiff appeared through 12 an interpreter at his disability hearing. (See Administrative Record ( AR ) at 29.) 13 There, he testified that he can read and write in English a little bit. (Id. at 33-34.) 14 He can also speak English, but not correctly. (Id. at 34.) Plaintiff further 15 indicated that his previous employers would agree that he could not speak English 16 very well. (Id.) The ALJ acknowledged as much in his decision. (Id. at 17.) 17 Moreover, the ALJ did not challenge the credibility of Plaintiff s testimony 18 regarding his language deficiencies. (Id.; see Lester v. Chater, 81 F.3d 821, 834 (9th 19 Cir. 1979) ( General [credibility] findings are insufficient; rather the ALJ must 20 identify what testimony is not credible and what evidence undermines that 21 testimony )). 22 23 24 25 26 27 28 4/ The DOT defines Level 1 Language as follows: Reading: Recognize meaning of 2,500 (two- or three-syllable) words. Read at rate of 95 120 words per minute. Compare similarities and differences between words and between series of numbers. Writing: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. Speaking: Speak simple sentences, using normal word order, and present and past tenses. Appendix C, 1991 WL 688702. 3 1 Nevertheless, the ALJ did not include Plaintiff s language limitation in his 2 hypotheticals to the VE. (See AR at 22.) Nor did he make any factual finding as to 3 whether Plaintiff met the requisite language level for the positions that the VE 4 identified. (See id. at 22.) Similar to Calderon, the ALJ apparently determined that 5 Plaintiff could communicate at a sufficient level without determining what Plaintiff 6 meant when he said that he can read and write in English a little bit. See 2009 WL 7 379008, at *10. As such, the ALJ erred in finding that Plaintiff could perform those 8 positions identified by the VE. 9 Accordingly, for the reasons stated above, the Court determines that the 10 ALJ s decision is not supported by substantial evidence. Mayes v. Massanari, 276 11 F.3d 453, 458-59 (9th Cir. 2001). 12 C. Remand is Warranted 13 With error established, this Court has discretion to remand or reverse and 14 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 15 useful purpose would be served by further proceedings, or where the record has been 16 fully developed, it is appropriate to exercise this discretion to direct an immediate 17 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 18 But where there are outstanding issues that must be resolved before a determination 19 can be made, or it is not clear from the record that the ALJ would be required to find 20 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 21 See id. at 594. 22 Here, in light of the ALJ s error, Plaintiff s language limitations must be 23 addressed. Therefore, on remand, the ALJ shall evaluate whether Plaintiff can 24 communicate in English at Language Level 1. 25 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 26 REVERSING the decision of the Commissioner denying benefits and 27 REMANDING the matter for further administrative action consistent with this 28 decision. 4 1 2 Dated: December 18, 2013 3 4 ____________________________________ 5 Hon. Jay C. Gandhi United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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