Kevin P. Lee v. Carolyn W. Colvin, No. 5:2013cv00767 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian re: Cross MOTION for Summary Judgment 19 , MOTION for Summary Judgment as to Social Security Complaint 16 . 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. (See Order for Details) (rp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KEVIN P. LEE, 12 Plaintiff, 13 14 15 Case No. EDCV 13-767 JC v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 MEMORANDUM OPINION AND ORDER OF REMAND [DOCKET NOS. 16, 19] Defendant. 17 18 I. 19 SUMMARY On May 2, 2013, plaintiff Kevin P. Lee ( plaintiff ) filed a Complaint 20 seeking review of the Commissioner of Social Security s denial of plaintiff s 21 application for benefits. The parties have consented to proceed before the 22 undersigned 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 26 Fed. R. Civ. P. 78; L.R. 7-15; May 8, 2013 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 February 23, 2010, plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record ( AR ) 28, 8 153, 158). Plaintiff asserted that he became disabled on January 1, 2007, due to 9 chronic arthritis and Kohler disease. (AR 28, 201-02). The Administrative Law 10 Judge ( ALJ ) examined the medical record and heard testimony from plaintiff 11 (who was represented by counsel) and a vocational expert on January 31, 2012. 12 (AR 48-95). 13 On March 9, 2012, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 28-34). Specifically, the ALJ found: 15 (1) plaintiff suffered from the following severe impairments: obesity, chronic 16 arthritis, degenerative joint disease, congenital clubfoot with recent status post 17 right gastrocnemius lengthening and right foot triple arthrodesis with lateral 18 column shortening with gastrocnemius contracture, and midfoot degenerative 19 arthritis (AR 30); (2) plaintiff s impairments, considered singly or in combination, 20 did not meet or medically equal a listed impairment (AR 30); (3) plaintiff retained 21 the residual functional capacity to perform light work1 (20 C.F.R. §§ 404.1567(b), 22 23 1 Light work involves lifting no more than 20 pounds at a time with frequent lifting or 24 carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). [T]he 25 full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. See 26 Social Security Ruling ( SSR ) 83-10. Social Security rulings are binding on the 27 Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990) (citations omitted). Such rulings reflect the official interpretation of the Social Security Administration and are 28 entitled to some deference as long as they are consistent with the Social Security Act and regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007). 2 1 416.967(b)) with additional limitations2 (AR 31); (4) plaintiff could perform his 2 past relevant work as a recycler (AR 34); and (5) plaintiff s allegations regarding 3 his limitations were not credible to the extent they were inconsistent with the 4 ALJ s residual functional capacity assessment (AR 32). 5 The Appeals Council denied plaintiff s application for review. (AR 1). 6 III. APPLICABLE LEGAL STANDARDS 7 A. 8 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 9 unable to engage in any substantial gainful activity by reason of any medically 10 determinable physical or mental impairment which can be expected to result in 11 death or which has lasted or can be expected to last for a continuous period of not 12 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 13 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 14 impairment must render the claimant incapable of performing the work claimant 15 previously performed and incapable of performing any other substantial gainful 16 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 17 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 18 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 19 sequential evaluation process: 20 (1) 21 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 22 23 2 The ALJ determined that plaintiff: (i) could lift and/or carry no more than 20 pounds 24 occasionally and 10 pounds frequently; (ii) could stand and/or walk at least two hours in an eight25 hour workday with normal breaks; (iii) could sit six hours in an eight-hour workday with normal breaks; (iv) could push and/or pull (including operation of hand/foot controls) without limitation 26 other than as referenced for lifting and/or carrying; (v) could occasionally balance and climb 27 ramps, stairs, ladders, ropes or scaffolds; (vi) could frequently stoop, kneel, crouch or crawl; (vii) had no manipulative limitations; (viii) was precluded from working around dangerous unguarded 28 moving machinery, in close proximity to open flames; and (ix) generally needed to avoid concentrated exposure to hazards. (AR 31). 3 1 (2) Is the claimant s alleged impairment sufficiently severe to limit 2 the claimant s ability to work? If not, the claimant is not 3 disabled. If so, proceed to step three. 4 (3) Does the claimant s impairment, or combination of 5 impairments, meet or equal an impairment listed in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1? If so, the claimant is 7 disabled. If not, proceed to step four. 8 (4) 9 perform claimant s past relevant work? If so, the claimant is 10 11 Does the claimant possess the residual functional capacity to not disabled. If not, proceed to step five. (5) Does the claimant s residual functional capacity, when 12 considered with the claimant s age, education, and work 13 experience, allow the claimant to adjust to other work that 14 exists in significant numbers in the national economy? If so, 15 the claimant is not disabled. If not, the claimant is disabled. 16 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 17 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 18 1110 (same). 19 The claimant has the burden of proof at steps one through four, and the 20 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 21 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 22 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 23 proving disability). 24 B. 25 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 26 benefits only if it is not supported by substantial evidence or if it is based on legal 27 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 28 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 4 1 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 2 mind might accept as adequate to support a conclusion. Richardson v. Perales, 3 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 4 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 5 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 6 To determine whether substantial evidence supports a finding, a court must 7 consider the record as a whole, weighing both evidence that supports and 8 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 9 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 10 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 11 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 12 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 13 IV. DISCUSSION 14 Plaintiff contends that the ALJ s determination at step four that plaintiff 15 could perform his past relevant work is the product of legal error. (Plaintiff s 16 Motion at 2-7). The Court agrees. As the Court cannot find that the ALJ s error 17 was harmless, a remand is warranted. 18 A. 19 At step four of the sequential evaluation process, the Administration may Pertinent Law 20 deny benefits when the claimant can perform the claimant s past relevant work as 21 actually performed, or as generally performed. Pinto v. Massanari, 249 F.3d 22 840, 845 (2001). ALJs routinely rely on the Dictionary of Occupational Titles 23 ( DOT ) in determining the physical and mental demands of a claimant s past 24 work. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); 25 see also 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1) (DOT is source of reliable job 26 information). The DOT is the presumptive authority on job classifications. 27 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). The ALJ may also rely on 28 testimony from a vocational expert. See, e.g., Bailey v. Astrue, 2010 WL 5 1 3369152, *5 (C.D. Cal. Aug. 24, 2010) ( vocational expert s testimony constitutes 2 substantial evidence to support [] ALJ s Step Four determination that plaintiff can 3 perform his past relevant work ) (citations omitted). 4 Although the claimant has the burden of proving an inability to perform his 5 past relevant work, the ALJ still has a duty to make the requisite factual findings 6 to support his conclusion. Pinto, 249 F.3d at 844. To determine whether a 7 claimant has the residual capacity to perform his past relevant work, the ALJ must 8 ascertain the demands of the claimant s former work and then compare the 9 demands with his present capacity. Villa v. Heckler, 797 F.2d 794, 797-98 (9th 10 Cir. 1986). In finding that an individual has the capacity to perform a past 11 relevant job, the determination or decision must contain the following specific 12 findings of fact: (1) a finding of fact as to the individual s residual functional 13 capacity; (2) a finding of fact as to the physical and mental demands of the past 14 job/occupation; and (3) a finding of fact that the individual s residual functional 15 capacity would permit a return to his past job or occupation. SSR 82-62. 16 B. 17 Here, the Court cannot conclude that the ALJ s determination at step four is Analysis 18 supported by substantial evidence and free of material error. 19 First, in the administrative decision, the ALJ stated that [t]he vocational 20 expert testified that the exertional and non-exertional demands of [plaintiff s] past 21 work as a recycler were well within his current residual functional capacity. (AR 22 34). The record, however, does not support the ALJ s reliance on the vocational 23 expert s testimony in this regard. The vocational expert did testify that plaintiff 24 (or a hypothetical individual with plaintiff s characteristics) could perform his past 25 relevant work as a recycler in the manner the position was described to be 26 performed (i.e., as actually performed ). (AR 90). However, the vocational 27 expert also testified [i]t sounds like in this particular instance [the recycler 28 position] was performed at [the] light [exertional level]. (AR 89). Work at the 6 1 light exertional level generally requires standing or walking, off and on, for up to 2 six hours see supra note 1 a degree of exertion inconsistent with the ALJ s 3 assessment that plaintiff could stand and/or walk only at least two hours in an 4 eight hour workday (AR 31). 5 Second, the ALJ also stated [i]n comparing [plaintiff s] residual functional 6 capacity with the physical and mental demands of [the past relevant work as a 7 recycler], the [ALJ] finds that [plaintiff] is able to perform it as actually 8 performed. (AR 34). At step four, however, the ALJ was required to set forth a 9 detailed explanation of the basis for each of her findings. See Pinto, 249 F.3d at 10 847 ( [R]equiring the ALJ to make specific findings on the record at each phase of 11 the step four analysis provides for meaningful judicial review. ) (citation and 12 quotation marks omitted). The ALJ s boilerplate step four findings were 13 inadequate under this standard. See id. ( When . . . the ALJ makes findings only 14 about the claimant s limitations, and the remainder of the step four assessment 15 takes place in the [vocational expert s] head, we are left with nothing to review. ) 16 (citation and quotation marks omitted). 17 Finally, the Court cannot find the ALJ s error harmless. At the hearing 18 plaintiff testified that while working as a recycler he was able to sit down a lot 19 and put [his] feet up when [it] wasn t busy. (AR 82). The vocational expert 20 testified that there would be no jobs available for an individual with plaintiff s 21 characteristics if the individual needed to keep his feet elevated at waist level 22 during the work day. (AR 91-92). Moreover, defendant points to no other 23 persuasive evidence in the record which could support the ALJ s determination at 24 step four that plaintiff was not disabled. See, e.g., Pinto, 249 F.3d at 846 (remand 25 warranted where ALJ found claimant not disabled at step four based largely on 26 inadequate vocational expert testimony and ALJ otherwise made very few 27 findings ). 28 /// 7 1 Accordingly, remand is warranted to permit the ALJ to reevaluate whether 2 plaintiff is able to perform any past relevant work and, if not, to proceed to step 3 five of the sequential evaluation process. 4 V. CONCLUSION3 5 For the foregoing reasons, the decision of the Commissioner of Social 6 Security is reversed in part, and this matter is remanded for further administrative 7 action consistent with this Opinion.4 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 DATED: November 26, 2013 10 _____________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. On remand, however, the ALJ may wish to consider whether the record contains any permissible basis for discrediting plaintiff s subjective symptom testimony other than lack of supporting medical evidence. See Burch, 400 F.3d at 681 ( lack of medical evidence cannot form the sole basis for discounting pain testimony ). 4 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). 8

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