Cherlyn Louise Ogle v. Carolyn W Colvin, No. 5:2014cv00236 - Document 17 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. Accordingly, IT IS HEREBY ORDERED that: (1) plaintiffs request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. *See attached Order.* (es)

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Cherlyn Louise Ogle v. Carolyn W Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 CHERLYN LOUISE OGLE, 13 14 15 16 17 Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 14-236-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on February 13, 2014, seeking review of the Commissioner’s denial 22 of her application for Disability Insurance Benefits. The parties filed Consents to proceed before 23 the undersigned Magistrate Judge on March 13, 2014, and April 1, 2014. Pursuant to the Court’s 24 Order, the parties filed a Joint Stipulation on October 23, 2014, that addresses their positions 25 concerning the disputed issue in the case. The Court has taken the Joint Stipulation under 26 submission without oral argument. 27 28 Dockets.Justia.com 1 II. 2 BACKGROUND 3 Plaintiff was born on February 29, 1960. [Administrative Record (“AR”) at 130.] She has 4 a high school education [AR at 31] and past relevant work experience as an executive assistant, 5 server, and restaurant manager. [AR at 155.] 6 On July 29, 2010, plaintiff filed an application for a period of disability and Disability 7 Insurance Benefits. [AR at 12, 130.] In her application plaintiff alleged disability beginning on April 8 14, 2008. [AR at 130.] After her application was denied initially and upon reconsideration, plaintiff 9 timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [AR at 73-86.] 10 A hearing was held on February 9, 2012, at which time plaintiff appeared represented by an 11 attorney, and testified on her own behalf. [AR at 26-63.] A vocational expert (“VE”) also testified. 12 [AR at 53-60.] On March 23, 2012, the ALJ issued a decision concluding that plaintiff was not 13 under a disability from April 15, 2008, through the date of the decision. [AR at 12-22.] When 14 plaintiff’s request for review of the hearing decision [AR at 8] was denied by the Appeals Council 15 on December 11, 2013 [AR at 1-7], the ALJ’s decision became the final decision of the 16 Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam). This action 17 followed. 18 19 III. 20 STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 22 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 23 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 24 F.3d 1228, 1231 (9th Cir. 2010). 25 “Substantial evidence means more than a mere scintilla, but less than a preponderance; 26 it is such relevant evidence as a reasonable mind might accept as adequate to support a 27 conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) 28 2 1 (internal quotation marks and citation omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 2 1998) (same). 3 Commissioner’s decision, the Court examines the administrative record as a whole, considering 4 adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 5 see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must 6 consider the entire record as a whole and may not affirm simply by isolating a specific quantum 7 of supporting evidence.”) (internal quotation marks and citation omitted). “Where evidence is 8 susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 9 528 F.3d at 1198 (internal quotation marks and citation omitted); see Robbins v. Soc. Sec. Admin., 10 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the 11 ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”). When determining whether substantial evidence exists to support the 12 13 IV. 14 THE EVALUATION OF DISABILITY 15 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 16 to engage in any substantial gainful activity owing to a physical or mental impairment that is 17 expected to result in death or which has lasted or is expected to last for a continuous period of at 18 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 19 1992). 20 21 A. THE FIVE-STEP EVALUATION PROCESS 22 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 23 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 24 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must 25 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 26 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 27 substantial gainful activity, the second step requires the Commissioner to determine whether the 28 3 1 claimant has a “severe” impairment or combination of impairments significantly limiting her ability 2 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 3 If the claimant has a “severe” impairment or combination of impairments, the third step requires 4 the Commissioner to determine whether the impairment or combination of impairments meets or 5 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., pt. 404, subpt. 6 P, app. 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant’s 7 impairment or combination of impairments does not meet or equal an impairment in the Listing, 8 the fourth step requires the Commissioner to determine whether the claimant has sufficient 9 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 10 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 11 relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case 12 of disability is established. The Commissioner then bears the burden of establishing that the 13 claimant is not disabled, because she can perform other substantial gainful work available in the 14 national economy. The determination of this issue comprises the fifth and final step in the 15 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 16 F.2d at 1257. 17 18 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 19 In this case, at step one, the ALJ found that plaintiff had not engaged in substantial gainful 20 activity since her alleged onset date, April 15, 2008.1 [AR at 14.] At step two, the ALJ concluded 21 that plaintiff has the following severe impairments: “coronary artery disease, with a history of stent 22 placement in 2009, and migraine headaches.” [Id.] At step three, the ALJ determined that plaintiff 23 does not have an impairment or a combination of impairments that meets or medically equals any 24 25 26 27 28 1 The ALJ concluded that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2014. [AR at 14.] 4 1 of the impairments in the Listings.2 [AR at 15.] The ALJ further found that plaintiff retained the 2 residual functional capacity (“RFC”)3 to perform light work as defined in 20 C.F.R. § 404.1567(b)4 3 as follows: lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for 6 4 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; cannot climb ladders, ropes, or 5 scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and 6 crawl; avoid all exposure to hazards (no work near machinery with exposed parts, or near 7 unshielded electrical circuits); and limited to work involving “simple repetitive tasks.” [AR at 15-16.] 8 At step four, the ALJ concluded that plaintiff is unable to perform any of her past relevant work. 9 [AR at 20.] At step five, with the assistance of the VE, the ALJ determined that there were jobs 10 that exist in significant numbers in the national economy that plaintiff could perform, including: mail 11 clerk (Dictionary of Occupational Titles (“DOT”) 209.687-026), information clerk (DOT 237.367- 12 018), and cashier II (DOT 211.462-010). [AR at 21-22.] Accordingly, the ALJ determined that 13 plaintiff was not disabled at any time from April 15, 2008, through the date of the decision. [AR 14 at 22.] 15 // 16 // 17 // 18 // 19 // 20 21 22 23 24 25 26 27 28 2 See 20 C.F.R. pt. 404, subpt. P, app. 1. 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 4 20 C.F.R. § 404.1567(b) defines “light work” as work involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and requiring “a good deal of walking or standing” or “sitting most of the time with some pushing and pulling of arm or leg controls.” 5 1 V. 2 THE ALJ’S DECISION 3 Plaintiff contends that the ALJ committed reversible error by failing to properly resolve 4 inconsistencies between the VE’s testimony and the DOT. [Joint Stipulation (“JS”) at 4.] As set 5 forth below, the Court agrees with plaintiff and remands the matter for further proceedings. 6 In particular, plaintiff argues that the ALJ erred in his step five determination by relying on 7 the VE’s testimony in concluding that plaintiff can perform work as a mail clerk (DOT 209.687- 8 026), information clerk (DOT 237.367-018), and cashier II (DOT 211.462-010). [JS at 4-7, 11-12; 9 AR at 21-22.] 10 At step five of the sequential evaluation process, the burden shifts to the Commissioner to 11 show that, taking into account plaintiff’s age, education, and vocational background, she can 12 perform any substantial gainful work in the national economy. 20 C.F.R. §§ 404.1520(f); Moore 13 v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). There are two ways for the Commissioner to meet the 14 burden of showing that there is other work in significant numbers in the national economy that 15 plaintiff can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical- 16 Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. See Tackett v. Apfel, 180 F.3d 1094, 17 1099 (9th Cir. 1999). If the Commissioner meets this burden, plaintiff is not disabled and therefore 18 not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the 19 Commissioner cannot meet this burden, then plaintiff is disabled and entitled to disability benefits. 20 See id. 21 The DOT raises a presumption as to job classification requirements. See Johnson v. 22 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); see also Pinto v. Massanari, 249 F.3d 840, 845-46 23 (9th Cir. 2001) (“[T]he best source for how a job is generally performed is usually the [DOT].”) 24 (internal citations omitted). In order for “the ALJ to rely on a job description in the [DOT] that fails 25 to comport with a [plaintiff]’s noted limitations, the ALJ must definitively explain this deviation” and 26 “the record must contain persuasive evidence to support [it].” Pinto, 249 F.3d at 846-47 (internal 27 quotations and citation omitted). 28 6 1 Additionally, Social Security Ruling5 (“SSR”) 00-4p unambiguously provides that “[w]hen 2 a [VE] . . . provides evidence about the requirements of a job or occupation, the adjudicator has 3 an affirmative responsibility to ask about any possible conflict between that [VE] . . . evidence and 4 information provided in the [DOT].” SSR 00-4p further provides that the adjudicator “will ask” the 5 VE “if the evidence . . . she has provided” is consistent with the DOT and obtain a reasonable 6 explanation for any apparent conflict. See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 7 2007). 8 Here, the ALJ in the RFC determination concluded that plaintiff “is limited to work involving 9 simple repetitive tasks.” [AR at 16.] The ALJ incorporated that limitation into the hypothetical 10 question he posed to the VE at the hearing on February 9, 2012. [AR at 56.] The VE testified that 11 a person with plaintiff’s limitations was capable of performing the work of a mail clerk (DOT 12 209.687-026), information clerk (DOT 237.367-018), and cashier II (DOT 211.462-010). [AR at 13 21-22.] 14 All jobs listed in the DOT have general education development (“GED”) levels -- defined 15 as “aspects of education (formal and informal) which are required of the worker for satisfactory job 16 performance.” DOT, Appendix C - Components of the Definition Trailer, 1991 WL 688702 (4th ed. 17 1991). The GED level of a job pertains to, among other things, the reasoning, math, language, and 18 writing development level necessary to perform a job, ranging from 1 (the lowest level) to 5 (the 19 highest level). Id. Here, the occupations of mail clerk and cashier II both have a GED reasoning 20 level of 3, and the occupation of information clerk has a GED reasoning level of 4. 21 Plaintiff argues that there is a conflict between the VE’s testimony and the DOT. 22 Specifically, she contends that a limitation to “simple, repetitive tasks” is inconsistent with the 23 requirements of both level 3 and level 4 reasoning. [See JS at 5.] The DOT defines level 3 24 25 26 27 28 5 “The Commissioner issues Social Security Rulings [(“SSRs”)] to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (internal citations omitted). 7 1 reasoning as the ability to “[a]pply commonsense understanding to carry out instructions furnished 2 in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in 3 or from standardized situations.” DOT, App. C., Sec. III, 1991 WL 688702 (4th ed. 1991). The 4 DOT defines level 4 reasoning as the ability to “[a]pply principles of rational systems to solve 5 practical problems and deal with a variety of concrete variables in situations where only limited 6 standardization exists. Interpret a variety of instructions furnished in written, oral, diagrammatic, 7 or schedule form. Examples of rational systems are: bookkeeping, internal combustion engines, 8 electric wiring systems, house building, farm management, and navigation.” Id. Each higher 9 numbered reasoning level is more demanding than the lower level. Level 2 is described as the 10 ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral 11 instructions. Deal with problems involving a few concrete variables in or from standardized 12 situations.” Id. 13 Courts have found that a limitation to “simple, repetitive tasks” may be consistent with level 14 2 reasoning. See, e.g., Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (“While 15 reasoning level two notes the worker must be able to follow ‘detailed’ instructions, it also . . . 16 downplayed the rigorousness of those instructions by labeling them as being ‘uninvolved.’”); 17 Vasquez v. Astrue, 2009 WL 3672519, at *3 (C.D. Cal. Oct. 30, 2009) (“[T]he DOT’s reasoning 18 development Level two requirement does not conflict with the ALJ’s prescribed limitation that 19 [p]laintiff could perform only simple, routine work.”). 20 However, level 3 expands the requirement to follow instructions to those in diagrammatic 21 form as well as oral and written forms and to deal with “several concrete variables.” DOT, App. 22 C., Sec. III, 1991 WL 688702 (4th ed. 1991). Thus, courts have found that level 3 reasoning is 23 inconsistent with the limitation to “simple, repetitive tasks.” See, e.g., Tich Pham v. Astrue, 695 24 F. Supp. 2d 1027, 1032 (C.D. Cal. 2010) (“[R]easoning level of 3 . . . is greater than the 25 reasoning required for the simple repetitive tasks.”); Pak v. Astrue, 2009 WL 2151361, at *7 (C.D. 26 Cal. 2009) (“The Court finds that the DOT’s Reasoning Level three requirement conflicts with the 27 ALJ’s prescribed limitation that [p]laintiff could perform only simple, repetitive work.”); Squier v. 28 Astrue, 2008 WL 2537129, at *5 (C.D. Cal. 2008) (reasoning level 3 is “inconsistent with a 8 1 limitation to simple repetitive work”); Tudino v. Barnhart, 2008 WL 4161443, at *11 (S.D. Cal. 2 2008) (“Level-two reasoning appears to be the breaking point for those individuals limited to 3 performing only simple repetitive tasks;” remand for ALJ to “address the conflict between 4 [p]laintiff’s limitation to ‘simple repetitive tasks’ and the level-three reasoning.”). 5 Plaintiff has made a sufficient showing of a conflict between the VE’s testimony and the 6 DOT to require the ALJ to ask the VE whether her testimony conflicted with the DOT and, if so, 7 whether there was a reasonable explanation for any conflict. Massachi, 486 F.3d at 1153; see 8 also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1234 (9th Cir. 2009) (“[T]he ALJ had 9 ‘an affirmative responsibility’ to inquire as to the reasons and evidentiary basis for the VE’s 10 deviation” from the DOT.) (citing SSR 00-4p). 11 The ALJ in this case did not do so. [See AR at 56-58.] Although the ALJ asked the VE to 12 advise when her testimony deviated from the DOT, the VE failed to mention any such deviation, 13 much less explain the reasons supporting a deviation from the DOT. [AR at 53.] Under these 14 circumstances, the Ninth Circuit has held that “we cannot determine whether the ALJ properly 15 relied on [the VE’s] testimony.” Massachi, 486 F.3d at 1154. Further, “we cannot determine 16 whether substantial evidence supports the ALJ’s step-five finding that [plaintiff] could perform other 17 work.” Id. The remedy, according to the Ninth Circuit, is “to remand this case so that the ALJ can 18 perform the appropriate inquiries under SSR 00-4p.” Id. While remand may not be necessary if 19 the procedural error is harmless, i.e., when there is no conflict or if the VE provided sufficient 20 support for her conclusion so as to justify any potential conflicts (id. at 1154 n. 19), here, as set 21 forth above, there was a deviation from the DOT and neither the VE nor the ALJ addressed that 22 deviation. Therefore, the Court finds that remand is warranted. 23 24 VI. 25 REMAND FOR FURTHER PROCEEDINGS 26 As a general rule, remand is warranted where additional administrative proceedings could 27 remedy defects in the Commissioner’s decision. See Harman, 211 F.3d at 1179; Kail v. Heckler, 28 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate for the ALJ to properly 9 1 conduct the step five determination and to clarify all deviations from the DOT.6 The ALJ is 2 instructed to take whatever further action is deemed appropriate and consistent with this decision. 3 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; 4 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 5 for further proceedings consistent with this Memorandum Opinion. 6 7 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 8 9 DATED: November 17, 2014 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6 28 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to return to her past relevant work. 10

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