Margarita Gutierrez v. Michael J. Astrue, No. 2:2010cv09690 - Document 35 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the foregoing reasons, the Agencys decision is reversed and the case is remanded for further proceedings consistent with this Memorandum Opinion and Order. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARGARITA GUTIERREZ, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-9690-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying her 20 applications for Supplemental Security Income ( SSI ) and Disability 21 Insurance Benefits ( DIB ). 22 Law Judge ( ALJ ) erred when he ignored the opinion of the reviewing 23 doctor and when he relied on the vocational expert s testimony that 24 Plaintiff could work despite her limitations. 25 For the reasons explained below, the ALJ s decision is reversed and 26 the case is remanded for further proceedings. 27 28 Plaintiff claims that the Administrative (Joint Stip. at 5-6.) 1 II. 2 SUMMARY OF PROCEEDINGS In September 2008, Plaintiff applied for SSI and DIB, alleging, 3 ultimately, that she was disabled due to diabetes, high blood 4 pressure, back problems, depression, and pain. 5 ( AR ) 89-106, 114, 148.) 6 initially and on reconsideration. 7 requested and was granted a hearing before an ALJ. 8 not represented by counsel, testified at the hearing on January 22, 9 2010. (AR 18-46.) (Administrative Record The Agency denied the applications (AR 51-59.) Plaintiff then Plaintiff, who was The ALJ subsequently issued a decision denying 10 benefits. (AR 8-17.) 11 which denied review. Plaintiff appealed to the Appeals Council, (AR 5-7.) 12 She then commenced this action. III. DISCUSSION 13 A. The ALJ s Reliance on the Vocational Expert s Testimony 14 The ALJ determined that Plaintiff was capable of performing light 15 work but was moderately limited in her ability to maintain 16 concentration and attention and could only use her left hand 17 occasionally. 18 testimony that, despite these limitations, Plaintiff could still 19 perform her former jobs of sales clerk, accounting clerk, and credit 20 card control clerk. 21 doing so. 22 about the sales clerk position and that the ALJ never asked the 23 vocational expert if her testimony was consistent with the Dictionary 24 of Occupational Titles ( DOT ), as required under the regulations. 25 (Joint Stip. at 5-6.) 26 (AR 14.) The ALJ accepted the vocational expert s (AR 16.) Plaintiff claims that the ALJ erred in She points out that the vocational expert never testified The Agency concedes that the vocational expert never testified 27 about the sales clerk position, but argues that the error was harmless 28 because she did testify about the other two positions and that 2 1 testimony is enough to support the ALJ s finding that Plaintiff could 2 work. 3 the resolution of Plaintiff s other argument here, i.e., that the ALJ 4 failed to ask the vocational expert about any apparent or actual 5 conflicts between her testimony and the DOT. 6 the ALJ erred here, too, when he failed to ask the vocational expert 7 if her testimony was consistent with the DOT, but argues that any 8 error was harmless because there was no inconsistency. 9 at 7-8.) 10 (Joint Stip. at 7, n.3.) The harmless error analysis turns on The Agency concedes that (Joint Stip. For the following reasons, the Court sides with the Agency. The DOT is the presumptive source on the characteristics of jobs 11 in the national economy. 12 (9th Cir. 2001). 13 information and the Agency may rely on the testimony of a vocational 14 expert for information on jobs. 15 1435 (9th Cir. 1995). 16 testimony, an ALJ must inquire whether the testimony conflicts with 17 the DOT. 18 Social Security Ruling 00-4p. 19 unless the error was harmless, i.e., there was no actual or apparent 20 conflict or the vocational expert provided sufficient support for her 21 conclusion so as to explain away any conflicts. 22 423 Fed. App x 754, 756 (9th Cir. 2011); Massachi, 486 F.3d at 1154 23 n.19. 24 See Pinto v. Massanari, 249 F.3d 840, 845-46 Nevertheless, it is not the sole source of this Johnson v. Shalala, 60 F.3d 1428, But, before relying on a vocational expert s Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); Failure to do so requires reversal Coleman v. Astrue, Though it is not clear from her brief, Plaintiff seems to argue 25 that there is a conflict or an apparent conflict between the 26 vocational expert s testimony that Plaintiff could work as an 27 accounting clerk and the DOT description of this job. 28 6.) (Joint Stip. at Presumably, this conflict is between the specific vocational 3 1 preparation, or SVP, of 5, which requires six months to one year of 2 training, and Plaintiff s limitations in her ability to maintain 3 concentration and attention. 4 from the single sentence she devotes to this issue, she is, 5 apparently, arguing that her mental limitations preclude her from 6 learning how to perform this job. 7 (Joint Stip. at 6.) Though not clear Plaintiff, however, has not explained how it is that any 8 limitations she suffers as a result of her mental impairment -which, 9 arguably, would interfere with her efforts to master the duties of a 10 job -would preclude her from performing a job that she already knows 11 how to perform and, in fact, already has performed. 12 record suggests that Plaintiff s impairment has caused her to lose the 13 fountain of knowledge she had before she suffered her mental 14 impairment. 15 Nothing in this As such, this argument is rejected. Plaintiff also argues that the vocational expert s testimony is 16 inconsistent with the descriptions of the jobs of credit card control 17 clerk and accounting clerk because they require frequent or constant 18 reaching, handling, and fingering and Plaintiff can only occasionally 19 use her left hand. 20 that there is any actual or potential conflict between the DOT and the 21 vocational expert s testimony that Plaintiff could perform these jobs 22 despite this limitation. 23 do not include a requirement for use of both hands. 24 216.482-010 (accounting clerk) and 249.367-026 (credit card control 25 clerk). 26 frequently use his hands to perform a job does not mean that he has to 27 be able to use both hands. 28 146 (5th Cir. 2000) (holding vocational expert s testimony that (Joint Stip. at 6-7.) The Court does not find The DOT job descriptions for these two jobs See DOT Nos. And, generally speaking, the requirement that an employee See, e.g., Carey v. Apfel, 230 F.3d 131, 4 1 claimant, whose left arm had been amputated, could perform work as 2 cashier or ticket seller was not inconsistent with DOT requirement of 3 occasional or frequent handling and fingering where DOT did not 4 specifically require use of both hands). 5 Plaintiff argues that the ALJ and, in turn, the Court, should 6 rely on the Revised Handbook for Analyzing Jobs, which Plaintiff 7 describes as a companion publication to the DOT. 8 6.) 9 hands are needed for the clerk positions identified by the ALJ. (Joint Stip. at 5- In Plaintiff s view, this handbook supports her position that two The 10 Court does not find the handbook binding on the Court or the ALJ, nor 11 did Plaintiff cite any authority to suggest that it was. 12 even if the ALJ had consulted it, the result of this case would not 13 have been different because, as Plaintiff points out in her brief, the 14 handbook defines handling as working with hand or hands. 15 Stip. at 6, citing Revised Handbook for Analyzing Jobs, page 12-6.) 16 Thus, because there was no actual or apparent conflict between Further, (Joint 17 the DOT and the vocational expert s testimony, the ALJ s error in not 18 asking the vocational expert about any conflict was harmless. 19 this reason, Plaintiff s first claim is denied. For 20 B. The ALJ s Treatment of Plaintiff s Mental Impairment 21 Plaintiff complains that the ALJ failed to properly consider the 22 opinion of reviewing doctor P.M. Balson, who concluded, it seems, that 23 Plaintiff was only capable of understanding and carrying out simple, 24 one- and two-step instructions. 25 disagrees. 26 instructions was proposed by a disability evaluation analyst, not Dr. 27 Balson, and, therefore, was not relevant. 28 For the following reasons, the Court finds that the ALJ erred here. (Joint Stip. at 12-14.) The Agency It argues that the limitation to simple, one- and two-step 5 (Joint Stip. at 12-14.) 1 Plaintiff was examined and tested by psychiatrist David Bedrin, 2 who ultimately concluded that she suffered from depression, which 3 limited her to performing simple tasks. 4 view, Plaintiff may have some impairment in her ability to perform 5 complex tasks secondary to concentration problems. 6 (AR 244-50.) In Dr. Bedrin s (AR 249.) Dr. Bedrin s opinion was reviewed by Dr. Balson, an Agency 7 reviewing physician. (AR 252-65.) Dr. Balson set forth his or her 8 opinion in two mostly check-the-box forms. 9 page of the first form, entitled, Psychiatric Review Technique, Dr. (AR 252-65.) On the first 10 Balson s name is typed twice, once on a signature line and directly 11 below it on a line requesting the signator to print his or her name. 12 (AR 252.) 13 doctor s opinion regarding Plaintiff s condition. 14 two through eight do not contain any check marks or writings. (AR 253- 15 59.) 16 the doctor s opinion regarding Plaintiff s limitations. 17 The eleventh and final page of the first form contains typed notes 18 summarizing Plaintiff s complaints and her claim history with regard 19 to her mental impairment. 20 following entry: **COMPLETED BY GLENN RAMOS, DEA III. 21 Several boxes are checked on the first page, indicating the (AR 252.) Pages Pages nine and ten of the form contain check marks, indicating (AR 262.) (AR 260-61.) This page also includes the (AR 262.) The second form, a Mental Residual Functional Capacity 22 Assessment, is three pages long. (AR 263-65.) The first two pages 23 are statements with boxes that have been checked, indicating the 24 author s opinion regarding Plaintiff s mental impairment. 25 64.) 26 section, under which various notes are typed, including, Able to 27 understand, carry out, and remember simple one and two-step 28 instructions and Able to make simple work-related judgments and (AR 263- The third page contains a Functional Capacity Assessment 6 1 decisions. 2 **COMPLETED BY GLENN RAMOS/DEA III. 3 entry is the statement, These findings complete the medical portion 4 of the disability determination. 5 statement is Dr. Balson s name typed in on the signature line. 6 (AR 265.) Typed underneath these entries are the words (AR 265.) (AR 265.) Underneath that Underneath that Dr. Balson s name on the signature line below the entry by Mr. 7 Ramos suggests to the Court that Dr. Balson endorsed the finding that 8 Plaintiff was limited to simple, one- and two-step instructions. 9 Assuming Plaintiff was so limited, she would not be able to perform 10 the jobs of accounting clerk or credit card control clerk, as they 11 involve reasoning level three and four, respectively, which is beyond 12 simple, one- and two-step instructions. 13 simple, one- and two-step instructions is more akin to level one 14 reasoning, which involves being able to: In fact, a limitation to 15 Apply commonsense understanding to carry out simple one- or 16 two-step instructions. 17 with occasional or no variables in or from these situations 18 encountered on the job. Deal with standardized situations 19 See DOT, Appendix C, Components of the Definition Trailer, 1991 WL 20 688702 (4th ed. rev. 1991); see also Garcia v. Astrue, 2011 WL 21 2173806, at *2 (C.D. Cal. June 1, 2011) (concluding restriction to 22 work involving one- and two-part instructions precluded work involving 23 Level 2 reasoning). 24 The Agency disagrees. It argues, it seems, that the Court should 25 simply brush aside the limitation to simple, one- and two-step 26 instructions as the musings of an untrained Agency disability 27 evaluation analyst, whatever that is. 28 argues that no doctor found that Plaintiff was limited to simple, one7 (Joint Stip. at 15-16.) It 1 and two-step tasks. This argument is rejected. Dr. Balson s 2 signature under Mr. Ramos s entries signify that Dr. Balson was 3 accepting and endorsing these findings. 4 portion of the opinion from the rest of the opinion or discount it 5 under the assumption that Dr. Balson must have ignored it or not seen 6 it. 7 presented in these cases and, thus, when a doctor signs off on a 8 medical form that may have been prepared at least in part by another 9 the Court presumes that the doctor read and understood the form and The Agency cannot sever that The Court presumes a certain regularity with the medical records 10 that he or she meant to endorse all of it when he or she signed off on 11 it. 12 With that understanding, the Court concludes that the record 13 contains an opinion from a reviewing doctor that Plaintiff is limited 14 to simple, one- and two-step instructions, a limitation that is 15 incompatible with a finding that she can perform work at reasoning 16 level three and four. 17 remand is, therefore, required. 18 (ii); and Sawyer v. Astrue, 303 Fed. App x 453, 455 (9th Cir. 2008). 19 The ALJ never addressed this conflict and See 20 C.F.R. ยง 416.927(f)(2)(i)- Plaintiff requests that Dr. Balson s opinion be credited as true 20 and that the Court remand the case to the Agency for an award of 21 benefits. 22 has the authority to do this, it declines to do so. 23 on this record that Plaintiff is entitled to benefits. 24 proceedings are necessary to resolve this issue. 25 Astrue, 547 F.3d 1101, 1106-07 (9th Cir. 2008) (noting that credit- 26 as-true rule should not apply if there are outstanding issues to be 27 resolved before a proper disability determination can be made), (Joint Stip. at 14, 19.) 28 8 Though the Court recognizes it It is not clear Further See Vasquez v. 1 amended in other respects on denial of reh g en banc, 572 F.3d 586 2 (9th Cir. 2009). For this reason, this request is denied. 3 4 IV. CONCLUSION For the foregoing reasons, the Agency s decision is reversed and 5 the case is remanded for further proceedings consistent with this 6 Memorandum Opinion and Order. 7 8 IT IS SO ORDERED. 9 DATED: January 24, 2012 10 11 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\GUTIERREZ, M 9690\Memo opinion and order.wpd 9
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