Dennis W Caire v. Michael J Astrue, No. 2:2012cv10128 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Dennis Caire filed this action on December 13, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on January 4 and 14, 2013. (Dkt. Nos. 11, 12.) On June 20, 2013, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court revers es the decision of the Commissioner and remands for further proceedings consistent with this opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded for further proceedings consistent with this opinion. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DENNIS CAIRE, 12 Plaintiff, 13 v. 14 15 16 17 18 CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-10128 AGR MEMORANDUM OPINION AND ORDER Plaintiff Dennis Caire filed this action on December 13, 2012. Pursuant to 19 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge 20 on January 4 and 14, 2013. (Dkt. Nos. 11, 12.) On June 20, 2013, the parties 21 filed a Joint Stipulation ( JS ) that addressed the disputed issues. The court has 22 taken the matter under submission without oral argument. 23 Having reviewed the entire file, the court reverses the decision of the 24 Commissioner and remands for further proceedings consistent with this opinion. 25 26 27 28 1 I. 2 PROCEDURAL BACKGROUND 3 On December 21, 2009, Caire filed an application for supplemental security 4 income benefits, and alleged an onset date of January 1, 2006. Administrative 5 Record ( AR ) 19, 111. The application was denied. AR 19, 65. Caire requested 6 a hearing before an Administrative Law Judge ( ALJ ). AR 74. On April 1, 2011, 7 the ALJ conducted a hearing at which Caire, his wife and a vocational expert 8 ( VE ) testified. AR 29-53. On June 13, 2011, the ALJ issued a decision denying 9 benefits. AR 16-25. On September 28, 2012, the Appeals Council denied the 10 request for review. AR 1-3. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Caire had the severe impairments of history of back The ALJ s Findings 12 pain, status post right wrist surgery and hepatitis C. AR 21. He had the residual 13 functional capacity ( RFC ) to lift and carry 10 pounds frequently and 20 pounds 14 occasionally; sit for 6 hours out of an 8-hour workday; stand and/or walk with the 15 use of a cane for 4 hours out of an 8-hour workday; occasionally and slowly climb 16 stairs; occasionally stoop; occasionally push and pull with the right upper 17 extremity; and occasionally perform pinching movements with the right wrist. AR 18 21. Although Caire could not perform any past relevant work, there were jobs 19 that existed in significant numbers in the national economy that he could perform 20 such as parking lot booth attendant. AR 23-24. 21 C. 22 Caire contends the ALJ erred at Step Five for two reasons: (1) the VE s Step Five of the Sequential Analysis 23 testimony was inconsistent with the Dictionary of Occupational Titles ( DOT ); 24 and (2) there was insufficient evidence of jobs in significant enough numbers that 25 Caire could perform. 26 At step five, the Commissioner bears the burden of demonstrating there is 27 other work in significant numbers in the national economy the claimant can do. 28 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the 3 1 Commissioner satisfies this burden, the claimant is not disabled and not entitled 2 to disability benefits. If the Commissioner cannot meet this burden, the claimant 3 is disabled and entitled to disability benefits. Id. 4 There are two ways for the Commissioner to meet the burden of showing 5 that there is other work in significant numbers in the national economy that 6 claimant can do: (1) by the testimony of a vocational expert, or (2) by reference 7 to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Id. 8 An ALJ may rely on VE testimony given in response to a hypothetical 9 question that contains all of the limitations the ALJ found credible and supported 10 by substantial evidence. Bayliss, 427 F.3d at 1217-18. An ALJ is not required to 11 include limitations that are not in his findings. Rollins v. Massanari, 261 F.3d 853, 12 857 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 1. 13 14 VE Testimony [A]n ALJ may [not] rely on a vocational expert s testimony regarding the 15 requirements of a particular job without first inquiring whether the testimony 16 conflicts with the Dictionary of Occupational Titles. 1 Massachi v. Astrue, 486 17 F.3d 1149, 1152 (9th Cir. 2007); see also Bray v. Comm r of Soc. Sec. Admin., 18 554 F.3d 1219, 1234 (9th Cir. 2009). Social Security Ruling ( SSR ) 00-4p2 19 requires the ALJ to first determine whether a conflict exists between the DOT 20 and the VE s testimony, and then determine whether the [VE s] explanation for 21 the conflict is reasonable and whether a basis exists for relying on the expert 22 rather than the [DOT]. Massachi, 486 F.3d at 1153. 23 24 25 26 27 28 1 The DOT raises a rebuttable presumption as to job classification. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 2 Social Security Rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 4 1 In evaluating the VE s explanation for the conflict, an ALJ may rely on 2 expert testimony which contradicts the DOT, but only insofar as the record 3 contains persuasive evidence to support the deviation. Johnson, 60 F.3d at 4 1435. The ALJ s explanation is satisfactory if the ALJ s factual findings support a 5 deviation from the DOT and persuasive testimony of available job categories 6 matches the specific requirements of a designated occupation with the specific 7 abilities and limitations of the claimant. Id. at 1435. Remand may not be 8 necessary if the procedural error is harmless, i.e., when there is no conflict or if 9 the VE provided sufficient support for her conclusion to justify any potential 10 11 conflicts. Massachi, 486 F.3d at 1154 n.19. The ALJ s RFC stated that Caire could occasionally perform pinching 12 movements with the right wrist. 3 AR 21. Pinching or picking is a type of 13 fingering. SSR 85-15, 1985 SSR LEXIS 20, *19 (1985). 14 15 16 Further, the ALJ limited Caire to standing and/or walking with the use of a cane for 4 hours out of an 8-hour workday. AR 21. The VE testified that the limitation with the wrist and hand in the RFC would 17 render an individual unable to do sedentary work. AR 46. The use of a cane 18 would eliminate most unskilled jobs while standing. Id. The VE testified that a 19 person with Caire s RFC could perform the job of parking lot booth attendant, 20 DOT 915.473-010. AR 45. According to the VE, this job could be performed 21 either sitting or standing. AR 47. 22 23 24 25 26 27 28 3 Fingering involves picking, pinching, or otherwise working primarily with the fingers. SSR 85-15, 1985 SSR LEXIS 20, *19. Caire contends that the ALJ misconstrued the examining physician s opinion, which stated: Due to the condition of the right wrist, pushing, pulling and picking are limited to occasional with the right upper extremity. AR 175. The ALJ asked the VE if the word picking had any special significance, and the VE responded that it did not. AR 44. The ALJ stated that she assume[d] she means like pinching, or pulling towards somebody, using the wrist and fingers at the same time. AR 45. The VE took that limitation into account. AR 45. Even assuming picking is a separate function from pinching, any error would be harmless and Caire does not make any contrary showing. 5 1 Caire argues that the VE s description of this job is inconsistent with the 2 DOT in two ways. First, the parking lot attendant job requires frequent fingering. 3 Second, the parking lot attendant job requires the ability to do activities 4 inconsistent with Caire s stand/walk limitations with use of a cane. 5 Courts have generally found that frequent fingering does not require both 6 hands. Thus, a claimant with limited or no use of one arm can perform the 7 fingering function. E.g., Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (no 8 conflict between claimant with amputated arm and the job requirements of 9 handling and fingering for cashier and ticket seller); Durrah v. Astrue, 2011 U.S. 10 Dist. LEXIS 51562, *8 (C.D. Cal. May 12, 2011) (no conflict between claimant 11 with use of only one arm and job of toll collector). 12 13 According to the DOT, the job of parking lot attendant (DOT 915.473-010) is defined as follows: 14 Parks automobiles for customers in parking lot or storage 15 garage: Places numbered tag on windshield of automobile 16 to be parked and hands customer similar tag to be used later 17 in locating parked automobile. Records time and drives 18 automobile to parking space, or points out parking space for 19 customer s use. Patrols area to prevent thefts from parked 20 automobiles. Collects parking fee from customer, based on 21 charges for time automobile is parked. Takes numbered tag 22 from customer, locates automobile, and surrenders it to 23 customer, or directs customer to parked automobile. May 24 service automobiles with gasoline, oil, and water. When 25 parking automobiles in storage garage, may be designated 26 Storage-Garage Attendant (automotive ser.). May direct 27 customers to parking spaces. 28 6 1 Although the VE testified that this job could be performed while sitting or 2 standing, the only function that might be performed while sitting is collecting the 3 parking fee and taking the tag from the customer. It is possible that the VE 4 intended to restrict the hypothetical claimant to work in a booth. AR 45. The 5 court cannot tell from the record whether the VE adjusted the number of jobs to 6 account for such a subset of parking lot attendant jobs. Remand is appropriate to 7 clarify the VE s testimony. 8 2. 9 Significant Number of Jobs [W]ork which exists in the national economy means work which exists in 10 significant numbers either in the region where such individual lives or in several 11 regions of the country. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 12 Commissioner bears the burden of establishing that there exists other work in 13 significant numbers. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The 14 Ninth Circuit has never set out a bright line rule for what constitutes a significant 15 number of jobs. Id. In Beltran, the Circuit found that 135 regional jobs and 1,680 16 national jobs are not significant within the meaning of the Act. Id. On the other 17 hand, the Circuit noted that 1266 regional jobs is a significant number. Id. (citing 18 Barker v. Sec y, 882 F.2d 1474, 1479 (9th Cir. 1989)); Thomas v. Barnhart, 278 19 F.3d 947, 960 (9th Cir. 2002) (1,300 jobs in Oregon is significant number). 20 An ALJ may rely on a VE s testimony regarding the number of jobs in a 21 region or the country. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 22 An ALJ may take administrative notice of any reliable job information, including 23 information provided by a VE. A VE s recognized expertise provides the 24 necessary foundation for his or her testimony. Thus, no additional foundation is 25 required. Id. The regulations also identify several sources of job information, 26 including the DOT, County Business Patterns published by the Bureau of the 27 Census, Occupational Analyses prepared by various state employment agencies 28 7 1 and the Occupational Outlook Handbook, published by the Bureau of Labor 2 Statistics. 20 C.F.R. §§ 404.1566(d), 416.966(d). 3 The social security regulations state that the focus need not be on the 4 immediate area in which an individual lives. 20 C.F.R. §§ 404.1566(a), 5 416.966(a). The significant number of jobs can be either regional jobs (the 6 region where a claimant resides) or in several regions of the country. Beltran, 7 700 F.3d at 389. 8 9 Here, the VE identified only 800 regional jobs. AR 45. That number is more than the 135 jobs at issue in Beltran but less than the 1266 regional jobs 10 found sufficient in Barker. Moreover, it is possible that the number of jobs may be 11 adjusted on remand based on Caire s ability to do only a small subset of the 12 functions of a parking lot attendant. 13 D. Credibility 14 To determine whether a claimant s testimony regarding subjective pain or 15 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 16 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 17 At step one, the ALJ must determine whether the claimant has presented 18 objective medical evidence of an underlying impairment which could reasonably 19 be expected to produce the pain or other symptoms alleged. Id. (citations 20 omitted). The ALJ found that Caire s medically determinable impairment could 21 reasonably be expected to cause the alleged symptoms. AR 22. 22 Second, if the claimant meets this first test, and there is no evidence of 23 malingering, the ALJ can reject the claimant s testimony about the severity of her 24 symptoms only by offering specific, clear and convincing reasons for doing so. 25 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 26 determination, the ALJ must specifically identify what testimony is credible and 27 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 28 F.3d 968, 972 (9th Cir. 2006) (citation omitted). Here, the ALJ found Caire s 8 1 statements concerning the intensity, persistence and limiting effects of these 2 symptoms were not credible to the extent they were inconsistent with the RFC. 3 AR 22. 4 The ALJ discounted Caire s credibility based on the medical record. AR 5 22-23. Lack of objective medical evidence supporting the degree of limitation 6 cannot form the sole basis for discounting subjective testimony. Burch v. 7 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). On remand, the ALJ must 8 reconsider Caire s credibility. 9 IV. 10 ORDER 11 IT IS HEREBY ORDERED that the decision of the Commissioner is 12 reversed and this matter is remanded for further proceedings consistent with this 13 opinion. 14 15 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel. 16 17 18 DATED: August 7, 2013 ALICIA G. ROSENBERG United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 9

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