Sheeraz B. Khan v. Michael J. Astrue, No. 2:2009cv08951 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton: This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. For the reasons set forth in this order, the matter will be remanded for further hearing consistent with this Memorandum Opinion. (rh)
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Sheeraz B. Khan v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 SHEERAZ B. KHAN, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-08951-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. 21 consented that the case may be handled by the Magistrate Judge. 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. 25 Joint Stipulation (“JS”), and the Commissioner has filed the certified 26 AR. 27 28 Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Plaintiff raises the following issues: 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 determined that Plaintiff could perform alternative work 2 activity. 3 4 This Memorandum Opinion will constitute the Court’s findings of 5 fact and conclusions of law. 6 concludes 7 Commissioner must be reversed. that for the After reviewing the matter, the Court reasons set forth, the decision of the 8 9 I 10 THE ALJ ERRED AT STEP FIVE OF THE SEQUENTIAL EVALUATION PROCESS 11 BY FAILING TO INQUIRE INTO DEVIATIONS BETWEEN THE VOCATIONAL 12 EXPERT’S TESTIMONY AND THE REQUIREMENTS OF THE DICTIONARY OF 13 OCCUPATIONAL TITLES 14 In his decision, the ALJ determined that Plaintiff has the 15 following residual functional capacity: lift and carry 20 pounds 16 occasionally and 10 pounds frequently, stand/walk one-half hour at a 17 time for a total of four hours in an eight-hour workday secondary to 18 mild anemia, sit six hours in an eight-hour workday and occasional 19 kneel, crouch and crawl. (AR 25.) 20 At the hearing which the ALJ conducted on July 24, 2007 (AR 36- 21 49), a Vocational Expert (“VE”) testified. The hypothetical included 22 exertional limitations which were identical to the residual functional 23 capacity (“RFC”) as found in the ALJ’s decision. (See AR at 45-46.)1 24 After posing the aforesaid hypothetical, the VE was asked what 25 work such an individual could do, in the absence of any past relevant 26 work, and the following testimony ensued: 27 1 28 Although the hypothetical also included non-exertional limitations, they are not an issue in this litigation. 2 1 “Q Okay. 2 A. And no prior training or experience required. And since we 3 have a person who is limited to a sit/stand option, I will 4 give you some examples of jobs, and the jobs have been 5 eroded 6 accommodation. 7 packaging work such as a handkerchief folder, 920.687-098. 8 This is light work, SVP 2. 9 estimate about 7,000 jobs in the local economy and in the 10 nation, in excess of 100,000 jobs. There’s various types in 11 inspecting work, such as inspector, 727.687-062. 12 also light work, SVP 2, and again on an eroded basis, about 13 3,000 jobs in the local economy and about 70,000 jobs in the 14 nation. 15 as a production assembler, 706.687–010. 16 work, SVP 2. And again on a [sic] eroded basis, about 7,000 17 jobs in the local economy and in the nation 180,000 jobs.” 18 by approximately 59 percent for the sit/stand For example, there’s various types of bench And on an eroded basis I would This is There will be various types of assembly work such This is also light (AR 46-47.) 19 20 As assessed by Plaintiff, the error in this case inheres in the 21 unexplained deviation between the Dictionary of Occupational Titles 22 (“DOT”) requirements of the identified jobs, and the VE’s testimony 23 that Plaintiff could perform these jobs pursuant to a 50 percent 24 “erosion.” 25 “The ALJ abdicated the responsibility to appropriately inquire into 26 the vocational expert’s purposeful use of the term “accommodate.” (JS 27 at 7.) 28 between the DOT and the testimony of the VE, and that the ALJ did not Plaintiff’s argument is summed up by his contention that, Plaintiff argues that there is a conflict and deviation 3 1 solicit a sufficient explanation to allow for such deviation. (JS at 2 8.) 3 the Commissioner and ALJs rely and is part of the record for review in 4 Social Security cases. (See JS at 8, citing SSR 00-4.) 5 SSR 00-4p, Plaintiff notes that it specifically provides that “when a 6 VE or VS provides evidence about the requirements of a job or 7 occupation, the adjudicator has an affirmative responsibility to ask 8 about possible conflict between that VE of VS evidence and information 9 provided Plaintiff argues that the DOT is the “primary” source on which in the DOT.” mandate that Plaintiff Social notes 10 Regulations Security 11 precedent. (See 20 C.F.R. §402.35(b)(1).) that Focusing on Social Rulings are Security binding 12 In response, the Commissioner contends that an ALJ may rely upon 13 vocational testimony that contradicts the DOT “as long as the record 14 contains persuasive evidence to support the deviation.” (JS at 12.) 15 The Commissioner argues that the VE simply “identif[ied] a subset, or 16 reduced number of jobs within an occupation that an individual with 17 Plaintiff’s particular limitations could perform.” (JS at 14.) The Commissioner cites Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 18 19 1995) in support of his argument that a record which contains 20 “persuasive evidence” to support the deviation may form the basis for 21 an ALJ relying on such expert VE testimony. 22 reads too much into Johnson, and indeed, a closer reading of the facts 23 and the holding of the case leads to a conclusion that Johnson lends 24 more support to Plaintiff’s position in this case. In Johnson, as the 25 opinion notes, the ALJ directed the VE to assume that the claimant was 26 restricted to sedentary work and had a number of non-exertional 27 limitations. 28 not perform her former job but could work in certain identified jobs But the Commissioner In response, the VE testified that the individual could 4 1 classified as “light” work, considered a more strenuous category than 2 “sedentary.” 3 because the ALJ had asked the VE to assume that she was limited to 4 sedentary work. (Id. at 1431, fn. 1.) 5 F.2d 1273, 1277 (9th Cir. 1990), the Court in Johnson indicated that 6 although “Terry supports the proposition that although the DOT raises 7 a presumption as to the job classification, it is rebuttable.” (Id. at 8 1435.) 9 testimony which is in contradiction with the DOT “but only insofar as 10 the record contains persuasive evidence to support the deviation.” 11 (Id.) 12 there was evidence of available job categories in the local rather 13 than the national market, and there was testimony matching the 14 specific requirements of a designated occupation with the specific 15 abilities and limitations of the claimant. (Id.) 16 Court noted that “in this case, the ALJ’s explanation is satisfactory 17 because the ALJ made findings of fact that supported deviation from 18 the DOT.” (Id., fn. 7.) 19 Plaintiff in that case asserted that there was error Citing Terry v. Sullivan, 903 The Court thus held that the ALJ may rely upon such expert The Court found there was such persuasive testimony because In a footnote, the In Johnson, the Court also noted that the DOT is not the only 20 source of admissible information concerning jobs, but that the 21 Commissioner can take administrative notice of any reliable job 22 information including the services of a VE. (Id. at 1435, citing 23 Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994), Whitehouse v. 24 Sullivan, 949 F.2d 1005, 1007 (8th Cir. 1991).) 25 Perhaps relying upon this later language in the Johnson opinion, 26 the Commissioner here argues that the VE simply identified a “subset, 27 or reduced number of jobs within an occupation” that somebody with 28 Plaintiff’s “particular limitations” 5 could perform. (JS at 14.) 1 Essentially, this boils down to an argument that the ALJ could simply 2 accept the testimony of the VE as an expert, or in the alternative, 3 that simply by acknowledging the exertional limitations posed by the 4 ALJ in the hypothetical, and identifying a reduced number of jobs that 5 Plaintiff could perform, that in itself constituted a sufficient 6 explanation for any deviation between the VE’s testimony and the DOT. 7 (See JS at 15-16.) 8 The problem with the Commissioner’s argument is that it is 9 foreclosed by the Ninth Circuit’s later decision in Massachi v. 10 Astrue, 486 F.3d 1149 (9th Cir. 2007), cited by both sides in this 11 case. 12 the above portion of the Johnson opinion, noted the following: The Circuit, perhaps acknowledging the possible ambiguity in 13 “For the first time, we address the question whether, 14 in light of the requirements of SSR 00-4p, an ALJ may rely 15 on 16 requirements of a particular job without first inquiring 17 whether the testimony conflicts with the Dictionary of 18 Occupational Titles. 19 a vocational expert’s testimony regarding the We hold than an ALJ may not.” (46 F.3d at 1152.) 20 21 In Massachi, the Court noted that Johnson had been decided prior 22 to the enactment of SSR 00-4p, but that nevertheless, Johnson had 23 instructed that an ALJ could rely upon exert testimony contradicting 24 the DOT only under circumstances in which persuasive evidence to 25 support the deviation had been demonstrated. (See Massachi, 486 F.3d 26 at 1153.) But, as Massachi made clear, SSR 00-4p provides unambiguous 27 guidance which requires the adjudicator to discharge an affirmative 28 responsibility to ask about any possible conflict between VE evidence 6 1 and information provided in the DOT. (Id. at 1152.) 2 noted, these procedural requirements “ensure that the record is clear 3 as 4 particularly in cases where the expert’s testimony conflicts with the 5 [DOT].” (Id. at 1153.) 6 to why an ALJ relied on a vocational As Massachi expert’s testimony, It is clear to this Court that Massachi clarified any possible 7 ambiguity 8 requirements of SSR –04p. 9 parties here agree that there is), there must exist persuasive 10 evidence in the record itself, which may be evidenced by the ALJ 11 inquiring into the VE’s reasons for identifying jobs in which there is 12 a deviation between a claimant’s exertional abilities, as set forth in 13 the hypothetical question, and the jobs actually identified. 14 Commissioner attempts to bypass this obligation by arguing that the VE 15 simply identified a subset or reduced number of jobs within an 16 occupation that somebody with Plaintiff’s particular limitations could 17 perform. (JS at 14.) 18 provided no explanation as to why that subset or reduced number of 19 jobs was in fact identified by him. 20 without more would be simply to accept the proposition that because 21 the VE is an expert, his reduction, or accommodation, of 50 percent 22 must be correct. 23 the responsibility of the ALJ, based upon inquiry, to determine, which 24 simply did not occur here. 25 in Johnson, by requiring strict adherence to the Thus, if there is a deviation (and both The But therein lies the problem, because the VE To accept the VE’s testimony To the contrary, whether it was correct or not was The Commissioner’s final argument is that if there is any error, 26 it is harmless. (JS at 15.) 27 Commissioner engages in circular reasoning, arguing that the VE 28 provided sufficient support In making this argument, however, the for 7 his conclusion about possible 1 conflicts by identifying a subset of occupations that could be 2 performed by someone exertionally limited as the hypothetical posited. 3 As the Court has indicated, the question is why such a subset was 4 identified, not the simple fact that it was identified. 5 Reply to the Commissioner’s argument succinctly makes this point. (See 6 JS 7 characterization of the VE’s testimony as an “unexplained rationale.” 8 (See, Id.) 9 be remanded for new hearing in a manner consistent with this decision. 10 For the foregoing reasons, this matter will be remanded for 11 12 at 16.) The Court cannot disagree with Plaintiff’s Plaintiff’s It is clear, based on the foregoing, that this matter must further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 13 14 15 DATED: November 23, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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