Mark Hamlett v. Michael J Astrue, No. 2:2011cv03818 - Document 17 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge John E. McDermott 1 . IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is REVERSED AND REMANDED for further proceedings in accordance with this Memorandum Opinion and Order and with law. LET JUDGMENT BE ENTERED ACCORDINGLY. (gr)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 MARK HAMLETT, Plaintiff, 13 14 15 16 17 18 19 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-03818-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS PROCEEDINGS On May 6, 2011, Mark Hamlett ( Plaintiff or Claimant ) filed a complaint seeking review 20 of the decision by the Commissioner of Social Security ( Commissioner ) denying Plaintiff s 21 application for Social Security Disability Insurance benefits and Supplemental Security Income 22 benefits. The Commissioner filed an Answer on August 15, 2011. On November 21, 2011, the 23 parties filed a Joint Stipulation ( JS ). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), 26 the Court concludes that the Commissioner s decision should be reversed and remanded for 27 further proceedings in accordance with this Memorandum Opinion and Order and with law. 28 1 BACKGROUND 2 Plaintiff is a 50 year old male who applied for Social Security Disability Insurance 3 benefits and Supplemental Security Income benefits on November 30, 2007, alleging disability 4 beginning June 1, 2001. (AR 20.) Plaintiff has not engaged in substantial gainful activity since 5 that date. (AR 22.) 6 Plaintiff s claims were denied initially on July 25, 2008, and on reconsideration on 7 February 25, 2009. (AR 20.) Plaintiff filed a timely request for hearing, which was held before 8 Administrative Law Judge ( ALJ ) Maxine R. Benmour on April 28, 2010, in Los Angeles, 9 California. (AR 20, 32-67.) Claimant appeared and testified at the hearing, and was 10 represented by counsel. (AR 20.) Vocational expert ( VE ) Heidi Paul, Ph.D., also appeared 11 and testified at the hearing. (AR 20.) The ALJ issued an unfavorable decision on May 18, 12 2010. (AR 20-31.) The Appeals Council denied review on March 25, 2011. (AR 1-7.) DISPUTED ISSUES 13 14 15 16 17 18 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issue as the only ground for reversal and remand: 1. Whether the ALJ carried the Administration s burden at step five. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 19 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 21 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 22 based on the proper legal standards). 23 Substantial evidence means more than a mere scintilla, but less than a 24 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 25 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 27 401 (internal quotation marks and citation omitted). 28 2 1 This Court must review the record as a whole and consider adverse as well as 2 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 3 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 4 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 5 However, a reviewing court must consider the entire record as a whole and may not affirm 6 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 7 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 8 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 9 10 The Social Security Act defines disability as the inability to engage in any substantial 11 gainful activity by reason of any medically determinable physical or mental impairment which 12 can be expected to result in death or . . . can be expected to last for a continuous period of not 13 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 14 established a five-step sequential process to determine whether a claimant is disabled. 20 15 C.F.R. §§ 404.1520, 416.920. 16 The first step is to determine whether the claimant is presently engaging in substantial 17 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 18 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 19 137, 140 (1987). Second, the ALJ must determine whether the claimant has a severe 20 impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is not 21 severe if it does not significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 22 1273, 1290 (9th Cir. 1996). Third, the ALJ must determine whether the impairment is listed, or 23 equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the 24 regulations. Parra, 481 F.3d at 746. If the impediment meets or equals one of the listed 25 impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. 26 Fourth, the ALJ must determine whether the impairment prevents the claimant from doing past 27 relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the 28 step four determination, the ALJ first must determine the claimant s residual functional capacity 3 1 ( RFC ).1 20 C.F.R. § 416.920(e). The RFC must consider all of the claimant s impairments, 2 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security 3 Ruling ( SSR ) 96-8p. If the claimant cannot perform his or her past relevant work or has no 4 past relevant work, the ALJ proceeds to the fifth step and must determine whether the 5 impairment prevents the claimant from performing any other substantial gainful activity. Moore 6 v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the 7 8 general rule that at all times the burden is on the claimant to establish his or her entitlement to 9 benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, 10 the burden shifts to the Commissioner to show that the claimant may perform other gainful 11 activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding 12 that a claimant is not disabled at step five, the Commissioner must provide evidence 13 demonstrating that other work exists in significant numbers in the national economy that the 14 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 15 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 16 entitled to benefits. Id. THE ALJ DECISION 17 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 18 19 not engaged in substantial gainful activity since June 1, 2001, the alleged onset date. (AR 22.) 20 At step two, the ALJ determined that Plaintiff has the following combination of medically 21 22 determinable severe impairments: degenerative disc disease of the lumbar spine, 23 hypertension, obesity, hearing loss, coronary artery disease, affective disorder diagnosed as 24 depression, and residuals of a stroke. (AR 23. ) 25 26 27 28 1 Residual functional capacity ( RFC ) is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 4 At step three, the ALJ determined that Plaintiff does not have an impairment or 1 2 combination of impairments that meets or medically equals one of the listed impairments. (AR 3 23.) The ALJ then found that the Plaintiff had the RFC to perform less than sedentary work 4 5 with the following limitations: 6 Lift and carry twenty pounds occasionally and ten pounds frequently, sit for 7 six hours in an eight-hour workday, and stand or walk for four hours in an 8 eight-hour workday. The claimant should never climb ladders, ropes, or 9 scaffolding. He must avoid all exposure to noise and cannot work in a job 10 that requires excellent hearing. The claimant is limited to one to two-step 11 instruction jobs with no production quotas, and he can tolerate occasional 12 contact with supervisors, co-workers, and the general public. 13 (AR 26.) At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as 14 15 an in-home health aide and a material handler. (AR 29.) The ALJ, however, did find there 16 were other jobs existing in significant numbers in the national economy that Plaintiff can 17 perform, such as a surveillance systems monitor and a food and beverage order clerk. (AR 18 30.) 19 20 21 22 Consequently, the ALJ concluded that Claimant is not disabled within the meaning of the Social Security Act. (AR 31.) DISCUSSION The ALJ decision must be reversed. The VE s testimony that Plaintiff could perform the 23 surveillance systems monitor and food and beverage order clerk jobs conflicts with the job 24 descriptions in the Dictionary of Occupational Titles ( DICOT ). The ALJ never asked the VE 25 for an explanation of the variance and the VE never gave an explanation. The Commissioner s 26 contention that no conflict actually exists as to the surveillance systems monitor position is 27 unpersuasive. The ALJ s step five determination is unsupported by substantial evidence. The 28 5 1 ALJ s non-disability determination is not supported by substantial evidence nor free of legal 2 error. 3 I. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE ALJ ERRED IN NOT OBTAINING AN EXPLANATION FOR THE VARIANCE BETWEEN THE VE S TESTIMONY AND DICOT A. Relevant Federal Law ALJ s routinely rely on DICOT in evaluating whether the claimant is able to perform other work in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1). DICOT raises a presumption as to job classification requirements. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1998). An ALJ may not rely on a vocational expert s testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with DICOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p ( the adjudicator has an affirmative responsibility to ask about any possible conflict between that [vocational expert] evidence and information provided in the [Dictionary of Occupational Titles] )). In order to accept vocational expert testimony that contradicts DICOT, the record must contain persuasive evidence to support the deviation. Pinto, 249 F.3d at 846 (quoting Johnson, 60 F.3d at 1435). The ALJ must obtain a reasonable explanation for the variance and then must decide whether to rely on the VE or DICOT. See Pinto, 249 F.3d at 847. Failure to do so, however, can be harmless error where there is no actual conflict or the VE provides sufficient support to justify any conflicts with or variation from DICOT. Massachi, 486 F.3d at 1154 n.19. B. The VE s Testimony Conflicts With DICOT And The ALJ s RFC There is no question that the VE s testimony conflicts with DICOT and the ALJ s RFC. The VE identified two jobs in the national economy that Plaintiff could perform: surveillance systems monitor, DICOT 379.367-010, 1991 WL 673244, and food and beverage order clerk, DICOT 209.567-014. According to DICOT, both jobs require a reasoning level of 3, which means: 26 27 28 6 1 Apply commonsense understanding to carry out instructions in written, oral, or 2 diagrammatic form. Deal with problems involving several concrete variables in or from 3 standardized solutions. 4 Id.; see also DICOT Appendix C, 1991 688702, setting forth General Educational Development 5 ( GED ) reasoning levels required of the worker for satisfactory job performance. A job s 6 reasoning level gauges the minimal ability a worker needs to complete the job s tasks 7 themselves. Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005). 8 The ALJ s RFC limits Plaintiff to one to two step instructions with no production 9 quotas. (AR 26.) A limitation of two steps of instruction corresponds to Level 1 reasoning. 10 Grigsby v. Astrue, 2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010) ( The restriction to jobs 11 involving no more than two-step instructions is what distinguishes Level 1 reasoning from 12 Level 2 reasoning. ); see also Murphy v. Astrue, 2011 WL 124723, at *6 (C.D. Cal. Jan. 13, 13 2011); Burns v. Astrue, 2010 WL 4795562, at *8 (C.D. Cal. Nov. 18, 2010) (three and four-step 14 instructions inconsistent with Reasoning Level 2 jobs). 15 A simple repetitive tasks limitation has been held consistent with both Reasoning Level 16 1 (one and two-step instructions) and Reasoning Level 2 (three and four-step instructions). 17 Chavez v. Astrue, 2009 WL 5172857, at *7 n.10 (C.D. Cal. Dec. 21, 2009); see also DICOT 18 App. C. Although the Ninth Circuit has not addressed the issue yet, district courts in this 19 Circuit have held that a limitation to simple, repetitive tasks is inconsistent with Reasoning 20 Level 3 jobs. Grimes v. Astrue, 2011 WL 164537, at *4 (C.D. Cal. Jan. 18, 2011); Carney v. 21 Astrue, 2010 WL 5060488, at *4 (C.D. Cal. Dec. 6, 2010); Smith v. Astrue, 2011 WL 2749561, 22 at *5 (C.D. Cal. Jul. 13, 2011); Bagshaw v. Astrue, 2010 WL 256544, at *5 (C.D. Cal. Jan. 20, 23 2010); McGensy v. Astrue, 2010 WL 1875810, at *3 (C.D. Cal. May 11, 2010); Tich Pham v. 24 Astrue, 695 F. Supp. 2d 1027, 1032 n.7 (C.D. Cal. 2010); Etter v. Astrue, 2010 WL 4314415, 25 at *3 (C.D. Cal. Oct. 22, 2010); Pak v. Astrue, 2009 WL 2151361, at *7 (C.D. Cal. Jul. 14, 26 2009); Tudino v. Barnhart, 2008 WL 4161443, at *11 (S.D. Cal. Sep. 5, 2008) ( Level two 27 reasoning appears to be the breaking point for those individuals limited to performing only 28 7 1 simple, repetitive tasks. ); Squier v. Astrue, 2008 WL 2537129, at *5 (C.D. Cal. Jun. 24, 2008) 2 (Reasoning Level 3 inconsistent with simple, repetitive work). 3 The VE s testimony that Plaintiff can perform the surveillance systems monitor and food 4 and beverage order clerk jobs, which require Level 3 reasoning, plainly conflict with the ALJ s 5 RFC limitation to one and two-step instructions (Reasoning Level 1). 6 C. The ALJ s Error Was Not Harmless 7 The ALJ did not ask the VE whether her testimony was consistent with DICOT. (AR 62- 8 66.) As a result, the VE never gave any explanation or justification for the variance. Neither 9 did the ALJ. Nor is there anything within the ALJ decision itself that provides sufficient or any 10 11 support for the variation from DICOT. The Commissioner implicitly concedes the conflict as to the food and beverage order 12 clerk but argues that there is no actual conflict as to the surveillance systems monitor job and, 13 thus, no harmless error because that job by itself would meet the Commissioner s step five 14 burden. See Carmickle v. Comm r. Soc. Sec. Admin., 553 F.3d 1155,1162-63 (9th Cir. 2008). 15 The Commissioner s arguments, however, are not persuasive evidence to support the 16 deviation. Pinto, 249 F.3d at 846. 17 The Commissioner argues that the DICOT narrative description for the surveillance 18 systems monitor job offers greater insight regarding the specific functions of the job, citing the 19 10th Circuit decision of Hackett v. Barnhart, 395 F.3d 1168, 1175-76 (10th Cir. 2005). In that 20 case, which also involved the same surveillance system monitor job, the ALJ s RFC limited the 21 plaintiff to no direct contact with the general public and occasional contact with co-workers. Id. 22 at 1175. Although DICOT indicates a People rating of 6, the DICOT narrative work 23 description actually indicates that contact with people is limited and the VE testified that, in 24 fact, the job is fairly solitary. Id. at 1175-76. Thus, the ALJ found no conflict with DICOT in the 25 VE s testimony. Id. at 1176. Applying the logic of Hackett, the Commissioner argues the 26 narrative job description for the surveillance systems monitor involves very simply tasks 27 (monitoring and controlling surveillance cameras). (JS 12.) 28 8 1 There are several problems with the Commissioner s argument. First, the 2 Commissioner cannot fill the void left by the failure of the VE and ALJ to explain the variance 3 between the VE s testimony and DICOT. This Court cannot consider arguments not 4 addressed in the ALJ decision. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (court 5 cannot base its ruling on considerations not addressed in the ALJ decision). In Hackett, the 6 argument made here by the Commissioner was provided by the ALJ and VE. Id. at 1175-76. 7 Hackett was not a case where the VE and ALJ failed to acknowledge a variance and/or failed 8 to explain that variance. Indeed, the Commissioner fails to acknowledge that the ALJ decision 9 in Hackett was reversed because the ALJ specified a Reasoning Level 2 limitation that the ALJ 10 and VE failed to explain.2 Id. at 1176. 11 12 Second, the Commissioner s argument fails in any event. Set forth below is the narrative job description for the surveillance systems monitor: 13 Monitors premises of public transportation terminals to detect crimes or disturbances, 14 using closed circuit television monitors, and notifies authorities by telephone of need for 15 corrective action. Observes television screens that transmit in sequence views of 16 transportation facility sites. Pushes hold button to maintain surveillance of location 17 where incident is developing, and telephones police or other designated agency to notify 18 authorities of location of disruptive activity. Adjusts monitor controls when required to 19 improve reception, and notifies repair service of equipment malfunctions. 20 DICOT 379.367-010. The Court disagrees with the Commissioner s interpretation of this 21 description as very simple and not mentally demanding. Obviously, there is some judgment in 22 assessing that a potential crime has been committed or is in progress. The Commissioner, 23 moreover, does not acknowledge that the ALJ s RFC limitation to one to two-step instructions 24 25 26 27 28 2 Hackett plainly provides authority that undermines Plaintiff s contention that the RFC limitation to only occasional contact with supervisors, co-workers and the general public conflicts with DICOT. (AR 26.) Nonetheless, the argument that according to the DICOT narrative job description, the surveillance systems monitor job involves only limited social interaction is the Commissioner s rationale, not that of the ALJ or VE. This is another issue to be addressed on remand. 9 1 indicates Reasoning Level 1, which is quite far afield from the Reasoning Level 3 specified in 2 DICOT. The Commissioner s argument is not persuasive evidence that no conflict exists 3 between DICOT and the ALJ s RFC limitation.3 4 The ALJ s failure to obtain any explanation for the variance between DICOT and the 5 ALJ s RFC limitation to jobs with only one to two-step instructions is not harmless error. The 6 ALJ s step five determination is not supported by substantial evidence. The ALJ s non- 7 disability determination is not supported by substantial evidence nor free of legal error. 8 ORDER 9 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 10 REVERSED AND REMANDED for further proceedings in accordance with this Memorandum 11 Opinion and Order and with law. 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 DATED: February 14, 2012 15 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 3 25 26 27 28 Plaintiff also contends that the RFC limitation precluding jobs that require excellent hearing (AR 26) also conflicts with the DICOT job description for the surveillance systems monitor job. Yet Plaintiff fails to identify anything in the DICOT job description that requires excellent hearing. See DICOT 373.367-010. In this instance, the VE did reject the notion that merely conversing over the telephone is inconsistent with DICOT or the ALJ s RFC: I think that conversing over the telephone doesn t necessarily require excellent hearing. (AR 64.) Thus, there is no conflict between DICOT and the ALJ s RFC preclusion of jobs which require excellent hearing. 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.