Michelle R Kirby v. Michael J Astrue, No. 8:2012cv00621 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHELLE R. KIRBY, 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, 15 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) NO. SA CV 12-621-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on April 24, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on May 22, 2012. 1 Plaintiff filed a motion for summary judgment on October 4, 2012. 2 Defendant filed a motion for summary judgment on October 25, 2012. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; Order, filed April 25, 2012. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability based on a combination of alleged impairments (Administrative Record ( A.R. ) 42-672). An 10 Administrative Law Judge ( ALJ ) found that, despite severe 11 impairments, Plaintiff retains the residual functional capacity to 12 perform a restricted range of light work (A.R. 27-29). 13 restrictions on the work Plaintiff can perform is a restriction to no 14 more than occasional reaching at or above the shoulder level (A.R. 15 29). 16 perform significant numbers of cashier II, office helper, and charge 17 account clerk jobs (A.R. 67-68). 18 expert whether the expert s testimony was consistent with the 19 information contained in the Dictionary of Occupational Titles ( DOT ) 20 (A.R. 68-69). 21 helper and charge account clerk require reaching frequently. 22 DOT §§ 205.367-014, 211.462-010, 239.567-010. 23 vocational expert s testimony in finding Plaintiff not disabled (A.R. 24 33-34). 25 /// 26 /// 27 /// 28 /// One of the A vocational expert testified that a person so restricted could The ALJ did not ask the vocational According to the DOT, the jobs of cashier II, office The ALJ relied on the The Appeals Council denied review (A.R. 1-3). 2 See STANDARD OF REVIEW 1 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 12 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 DISCUSSION 15 16 Social Security Ruling 00-4p1 provides: 17 18 Occupational evidence provided by a [vocational expert] 19 generally should be consistent with the occupational 20 information supplied by the DOT. 21 unresolved conflict between [vocational expert] evidence and 22 the DOT, the adjudicator must elicit a reasonable 23 explanation for the conflict before relying on the 24 [vocational expert] evidence to support a determination or 25 decision about whether the claimant is disabled. When there is an apparent At the 26 27 28 1 Social Security rulings are binding on ALJs. Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990); see 20 C.F.R. § 422.408. 3 1 hearings level, as part of the adjudicator s duty to fully 2 develop the record, the adjudicator will inquire on the 3 record, as to whether or not there is such consistency. 4 . . . 5 requirements of a job or occupation, the adjudicator has an 6 affirmative responsibility to ask about any possible 7 conflict between that VE or VS evidence and information 8 provided in the DOT. When a VE or VS provides evidence about the 9 10 The procedural requirements of SSR 00-4p ensure that the record 11 is clear as to why an ALJ relied on a vocational expert s testimony, 12 particularly in cases where the expert s testimony conflicts with the 13 [DOT]. 14 see Light v. Social Security Administration, 119 F.3d 789, 794 (9th 15 Cir. 1997) (error exists where [n]either the ALJ nor the vocational 16 expert explained the reason for departing from the DOT ); Johnson v. 17 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) ( an ALJ may rely on 18 expert testimony which contradicts the DOT, but only insofar as the 19 record contains persuasive evidence to support the deviation ). Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); 20 21 In the present case, the ALJ erred by failing to inquire, on the 22 record, as to whether or not the vocational expert s testimony was 23 consistent with the information in the DOT. 24 this error was material depends on whether there existed an apparent 25 unresolved conflict between the vocational expert s testimony and the 26 DOT. 27 /// 28 /// See id. 4 See SSR 00-4p. Whether 1 Plaintiff appears to contend that a restriction to no more than 2 occasional reaching at or above the shoulder level conflicts with 3 the DOT s requirement of reaching frequently (Plaintiff s Motion at 4 12). 5 that in social security parlance, frequently means more often than 6 occasionally, and reaching means extending the hands and arms in 7 any direction. 8 Plaintiff posits an inconsistency between frequent reaching and a 9 restriction to no more than occasional reaching at or above the Defendant denies any conflict. Neither party appears to dispute See SSR 85-15 (emphasis added). Still, while 10 shoulder level, Defendant conceptualizes reaching at or above the 11 shoulder level as a subset of the general category of reaching 12 (Defendant s Motion at 5). 13 category - subset relationship permits a vocational expert to opine 14 regarding particular jobs lack of at or above the shoulder level 15 reaching requirements without ever coming into conflict with the DOT 16 (Id.). According to Defendant, this general 17 18 Several courts, including some judges of this Court, have 19 discerned a conflict between the requirement of frequent reaching and 20 a preclusion or restriction on reaching above the shoulder level. 21 Duff v. Astrue, 2012 WL 3711079, at *3-4 (C.D. Cal. Aug. 28, 2012); 22 McQuone v. Astrue, 2012 WL 3704795, at *3-4 (E.D. Cal. Aug. 24, 2012); 23 Newman v. Astrue, 2012 WL 1884892, at *5 (C.D. Cal. May 23, 2012); 24 Richardson v. Astrue, 2012 WL 1425130, at *4-5 (C.D. Cal. April 25, 25 2012); Bentley v. Astrue, 2011 WL 2785023, at *3-4 (C.D. Cal. July 14, 26 2011); Bermudez v. Astrue, 2011 WL 997290, at *3-4 (C.D. Cal. 27 March 21, 2011); Hernandez v. Astrue, 2011 WL 223595, at *5 (C.D. Cal. 28 Jan. 21, 2011); Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 (C.D. 5 See 1 Cal. April 27, 2010); Caruso v. Astrue, 2008 WL 1995119, at *7 (N.D. 2 N.Y. May 6, 2008); see also Prochaska v. Barnhart, 454 F.3d 731, 736 3 (7th Cir. 2006) ( It is not clear to us whether the DOT s requirements 4 include reaching above shoulder level and this is exactly the sort of 5 inconsistency the ALJ should have resolved with the expert s help ). 6 7 Yet, several courts, including some judges of this Court, have 8 discerned no conflict between the requirement of frequent reaching and 9 a preclusion or restriction on reaching above the shoulder level. 10 Lidster v. Astrue, 2012 WL 13731, at *3 (S.D. Cal. Jan. 3, 2012); 11 Provenzano v. Astrue, 2009 WL 4906679, at *5 (C.D. Cal. Dec. 17, 12 2009); Fuller v. Astrue, 2009 WL 4980273, at *2 (C.D. Cal. Dec. 15, 13 2009); Rodriguez v. Astrue, 2008 WL 2561961, at *2 (C.D. Cal. June 25, 14 2008). See 15 16 On the present record, this Court is unable to conclude that the 17 ALJ s violation of SSR 00-4p was harmless. As suggested by much of 18 the case law, a conflict between the vocational expert s testimony and 19 the information in the DOT may well exist. 20 contemplate a requirement of omnidirectional reaching. 21 ( any direction ). 22 an ALJ s failure to comply with the procedural requirements of SSR 00- 23 4p leaves the court s review too speculative when a potential conflict 24 of this type exists between a vocational expert s testimony and the 25 information in the DOT. 26 *8 (W.D. Va. June 23, 2008). 27 speculation regarding the vocational requirements of particular jobs. 28 See Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988). The DOT may well See SSR 85-15 Moreover, as one court held in a similar context, See Dickerson v. Astrue, 2008 WL 2563251, at Social Security law does not permit 6 Thus, 1 this Court properly cannot affirm the ALJ s decision based on the 2 seemingly plausible speculation that there exist significant numbers 3 of cashier II, office helper or charge account clerk jobs which 4 require only occasional reaching at or above the shoulder level. 5 6 CONCLUSION AND ORDER 7 8 9 The error discussed above was potentially prejudicial to the ALJ s decision, such that the decision must be reversed. See McLeod 10 v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (reversal appropriate 11 where the reviewing court can determine from the circumstances of 12 the case that further administrative review is needed to determine 13 whether there was prejudice from the error ). 14 an administrative determination, the proper course, except in rare 15 circumstances, is to remand to the agency for additional investigation 16 or explanation. 17 and quotations omitted). 18 administrative proceedings could remedy the defects in the decision. 19 See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// When a court reverses INS v. Ventura, 537 U.S. 12, 16 (2002) (citations Remand is proper where, as here, additional 7 1 Therefore, Plaintiff s and Defendant s motions for summary 2 judgment are denied and this matter is remanded for further 3 administrative action consistent with this Opinion.2 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: November 1, 2012. 8 9 _____________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 8
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