Venita Sue Hagler v. Michael J Astrue, No. 2:2012cv01991 - Document 24 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND 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 12 13 14 15 16 17 VENITA SUE HAGLER, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-1991-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 March 12, 2012, seeking review of 27 the Commissioner s denial of disability benefits. The parties filed a 28 consent to proceed before a United States Magistrate Judge on 1 April 24, 2012. Plaintiff filed a motion for summary judgment on 2 August 21, 2012. 3 on September 20, 2012.1 4 submission without oral argument. 5 March 12, 2012. Defendant filed a cross-motion for summary judgment The Court has taken the motions under See L.R. 7-15; Order, filed 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 Plaintiff, who reportedly has had past relevant work as a child 10 monitor, daycare worker and teacher aide II, asserts disability 11 based on a combination of alleged impairments (Administrative Record 12 ( A.R. ) 18, 82-85, 88-90, 109, 116-24). 13 ( ALJ ) determined that Plaintiff suffers from several severe 14 impairments, including coronary artery disease, diabetes, degenerative 15 disc disease, obesity and depression (A.R. 12). 16 these impairments restrict Plaintiff to the performance of medium work 17 that would allow her to sit, as needed (A.R. 14). 18 to have adopted the sit, as needed restriction from the opinion of 19 Dr. Barry Gordon Gwartz, an examining internist who opined Plaintiff 20 must sit as needed for fatigue or pain in the feet (A.R. 15, 242). 21 Without consulting a vocational expert, the ALJ stated that all of 22 Plaintiff s past relevant work would allow her to sit, as needed 23 . . . (A.R. 18). 24 (A.R. 18-19). The Administrative Law Judge The ALJ found that The ALJ appears Consequently, the ALJ found Plaintiff not disabled The Appeals Council denied review (A.R. 2-4). 25 26 1 27 28 Defendant s cross-motion for summary judgment is erroneously entitled Defendant s Motion for Judgment on the Pleadings and Opposition to Plaintiff s Motion for Judgment on the Pleadings. 2 1 STANDARD OF REVIEW 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). 8 evidence is such relevant evidence as a reasonable mind might accept 9 as adequate to support a conclusion. See Carmickle v. Substantial Richardson v. Perales, 402 U.S. 10 389, 401 (1971) (citation and quotations omitted); see Widmark v. 11 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 12 13 DISCUSSION 14 15 The Administration may deny disability benefits when the claimant 16 can perform the claimant s past relevant work as actually performed, 17 or as usually or generally performed. 18 F.3d 840, 845 (9th Cir. 2001). 19 of proving an inability to perform his or her past relevant work, the 20 ALJ still has a duty to make the requisite factual findings to support 21 his [or her] conclusion. 22 claimant has the residual capacity to perform his [or her] past 23 relevant work, the [Administration] must ascertain the demands of the 24 claimant s former work and then compare the demands with his [or her] 25 present capacity. 26 1986); see 20 C.F.R. § 404.1520(e). 27 /// 28 /// Pinto v. Massanari, 249 Although the claimant has the burden Id. at 844. To determine whether a Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 3 1 In finding that an individual has the capacity to perform a 2 past relevant job, the determination or decision must 3 contain among the findings the following specific findings 4 of fact: 5 1. 6 A finding of fact as to the individual s RFC [residual functional capacity]. 7 8 2. 9 10 A finding of fact as to the physical and mental demands of the past job/occupation. 11 12 3. A finding of fact that the individual s RFC would 13 permit a return to his or her past job or 14 occupation. SSR 82-62 (emphasis added).2 15 16 See Dealmeida v. Bowen, 699 F. Supp. 806, 807 (N.D. Cal. 1988). 17 18 19 In making these findings, the ALJ must conduct a searching inquiry and analysis. 20 21 The decision as to whether the claimant retains the 22 functional capacity to perform past work which has current 23 relevance has far-reaching implications and must be 24 developed and explained fully in the disability decision. 25 Since this is an important and, in some instances, a 26 27 28 2 ALJs must follow Social Security Rulings such as SSR 82-62. See, e.g., Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 4 1 controlling issue, every effort must be made to secure 2 evidence that resolves the issue as clearly and explicitly 3 as circumstances permit. 4 5 Reasonable inferences may be drawn, but presumptions, 6 speculations and suppositions must not be used. 7 8 SSR 82-62. 9 10 In the present case, the ALJ failed to inquire sufficiently 11 regarding the requirements of Plaintiff s past relevant work. As a 12 result, the record contains insufficient evidence on the potentially 13 critical issue of whether Plaintiff s past relevant work would permit 14 a worker to sit, as needed (i.e., presumably, to sit briefly but 15 repeatedly throughout the work day at times chosen by the worker). 16 Contrary to Defendant s arguments, Plaintiff s self-reports regarding 17 the requirements of her past jobs do not sufficiently address this 18 issue. 19 sufficiently address this issue. 20 018, 249.367-074. 21 correct resolution of this issue is not self-evident. 22 the ALJ s unexplained conclusion that each of Plaintiff s prior jobs 23 would allow her to sit, as needed cannot stand. 24 Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (Administration may not 25 speculate concerning the requirements of particular jobs); see also 26 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ( the ALJ has a 27 special duty to fully and fairly develop the record and to assure the 28 claimant s interests are considered . . . ); SSR 83-12 ( There are The Dictionary of Occupational Titles ( D.O.T. ) does not See D.O.T. §§ 301.677-010, 359.677- No vocational expert addressed this issue. 5 The Accordingly, See Burkhart v. 1 some jobs in the national economy - typically professional and 2 managerial ones - in which a person can sit or stand with a degree of 3 choice . . . 4 demand that a worker be in a certain place or posture for at least a 5 certain length of time to accomplish a certain task. 6 of jobs are particularly structured so that a person cannot ordinarily 7 sit or stand at will. 8 sit or stand a VS [Vocational Specialist] should be consulted to 9 clarify the implications for the occupational base. ); SSR 82-61 ( For 10 those instances where available documentation and vocational resource 11 material are not sufficient to determine how a particular job is 12 usually performed, it may be necessary to utilize the services of a 13 Vocational Specialist or Vocational Expert ). However, most jobs have ongoing work processes which Unskilled types In cases of unusual limitation of ability to 14 15 An ALJ need not always consult a vocational expert to help 16 determine whether a claimant can perform the claimant s past relevant 17 work. 18 Miller v. Heckler, 770 F.2d 845, 850 (9th Cir. 1985). 19 circumstances of the present case, however, there exists no 20 substantial evidence in the record supporting the ALJ s conclusion 21 that a person with Plaintiff s sit, as needed restriction could 22 perform Plaintiff s past relevant work. 23 expert might provide such evidence. 24 may use the services of vocational experts or vocational specialists 25 . . . to obtain evidence we need to help us determine whether you can 26 do your past relevant work, given your residual functional capacity. 27 A vocational expert or specialist may offer relevant evidence within 28 his or her expertise or knowledge concerning the physical and mental See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993); 6 Under the The opinion of a vocational See 20 C.F.R. § 404.1560(b) ( We 1 demands of a claimant s past relevant work, either as the claimant 2 actually performed it or as generally performed in the national 3 economy . . . 4 offer expert opinion testimony in response to a hypothetical question 5 about whether a person with the physical and mental limitations 6 imposed by the claimant s medical impairment(s) can meet the demands 7 of the claimant s previous work, either as the claimant actually 8 performed it or as generally performed in the national economy ). In addition, a vocational expert or specialist may 9 10 The Court is unable to conclude that the ALJ s error was 11 harmless. [A]n ALJ s error is harmless where it is inconsequential to 12 the ultimate non-disability determination. 13 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted). 14 [W]e must analyze harmlessness in light of the circumstances of the 15 case. Molina v. Astrue, 674 Id. at 1121 (citations and quotations omitted). 16 17 [D]espite the burden to show prejudice being on the party 18 claiming error by the administrative agency, the reviewing 19 court can determine from the circumstances of the case that 20 further administrative review is needed to determine whether 21 there was prejudice from the error. 22 enough. 23 substantial likelihood of prejudice, remand is appropriate 24 so that the agency can decide whether re-consideration is 25 necessary. 26 a borderline question, remand for reconsideration is not 27 appropriate. 28 Mere probability is not But where the circumstances of the case show a By contrast, where harmlessness is clear and not /// 7 1 McCleod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). 2 3 In the present case, further administrative review is needed to 4 determine whether there was prejudice from the error. See id.; see 5 also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 6 administrative determination, the proper course is remand for 7 additional agency investigation or explanation, except in rare 8 circumstances). 9 10 CONCLUSION 11 12 For all of the foregoing reasons,3 Plaintiff s and Defendant s 13 motions for summary judgment are denied and this matter is remanded 14 for further administrative action consistent with this Opinion. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: September 26, 2012. 19 20 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 3 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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