Nancy Robinson v. Michael J Astrue, No. 2:2012cv10285 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (rp)

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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 NANCY ROBINSON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) ) Defendant. ) ) ___________________________________) NO. CV 12-10285-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 /// 25 26 27 28 1 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 PROCEEDINGS 2 3 Plaintiff filed a complaint on December 3, 2012, seeking review 4 of the Commissioner s denial of disability benefits. 5 filed a consent to proceed before a United States Magistrate Judge on 6 January 8, 2013. 7 June 26, 2013. 8 August 26, 2013. 9 without oral argument. 10 The parties Plaintiff filed a motion for summary judgment on Defendant filed a cross-motion for summary judgment on The Court has taken the motions under submission See L.R. 7-15; Order, filed December 6, 2012. 11 12 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 13 14 Plaintiff, a former physical fitness instructor, asserts 15 disability since March 2, 2002, based on a combination of alleged 16 physical impairments (Administrative Record ( A.R. ) 40-97, 102-04, 17 257-58, 283, 333). 18 2006 (A.R. 122). Plaintiff s last insured date was September 30, 19 20 The Administrative Law Judge ( ALJ ) determined that Plaintiff 21 suffers from the following severe impairments: degenerative disc 22 disease involving the cervical and lumbar spine and migraine 23 headaches (A.R. 123). 24 insured, Plaintiff retained the residual functional capacity to 25 perform light work, except that [Plaintiff] could perform occasional 26 overhead reaching and perform all postural activities occasionally. 27 (Id.). 28 /// The ALJ found that, through the date last 2 1 The ALJ consulted a vocational expert in connection with 2 evaluating whether a person having Plaintiff s residual functional 3 capacity could perform Plaintiff s past relevant work as a physical 4 fitness instructor (A.R. 98-100, 128). 5 posed to this vocational expert, however, the ALJ referenced a person 6 who could perform the full range of light work (A.R. 99). 7 hypothetical question failed to include any restriction on overhead 8 reaching or any restriction on postural activities (Id.). 9 vocational expert testified that a person who could perform the full 10 range of light work could perform Plaintiff s past relevant work as a 11 physical fitness instructor as she has described her past work in 12 file, and as it is described by the Dictionary of Occupational Titles 13 (A.R. 99-100). In a hypothetical question The The 14 15 In express reliance on the testimony of the vocational expert, 16 the ALJ found that Plaintiff had been capable of performing 17 Plaintiff s past relevant work as a physical fitness instructor 18 through the date last insured (A.R. 128). 19 vocational expert testified that a hypothetical claimant with 20 [Plaintiff s] residual functional capacity would be able to perform 21 [Plaintiff s] past relevant work as generally and actually performed. 22 (Id.) The ALJ stated that [t]he The Appeals Council denied review (A.R. 1-3). 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. section 405(g), this Court reviews the 27 Administration s decision to determine if: (1) the Administration s 28 findings are supported by substantial evidence; and (2) the 3 1 Administration used correct legal standards. See Carmickle v. 2 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). 3 evidence is such relevant evidence as a reasonable mind might accept 4 as adequate to support a conclusion. 5 389, 401 (1971) (citation and quotations omitted); see Widmark v. 6 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). Substantial Richardson v. Perales, 402 U.S. 7 8 DISCUSSION 9 10 The ALJ s decision mischaracterizes the vocational expert s 11 testimony. Contrary to the ALJ s decision, the vocational expert did 12 not testify that a hypothetical claimant with [Plaintiff s] residual 13 functional capacity would be able to perform [Plaintiff s] past 14 relevant work as generally and actually performed. 15 vocational expert was never asked whether a hypothetical claimant with 16 Plaintiff s residual functional capacity, including her limitations on 17 overhead reaching and postural activities, would be able to perform 18 Plaintiff s past relevant work as generally and actually performed. In fact, the 19 20 Where, as here, a hypothetical question fails to set out all of 21 the claimant's impairments, the vocational expert's answers to the 22 question cannot constitute substantial evidence to support the ALJ's 23 decision. 24 1991); Gamer v. Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); 25 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984); see also 26 Social Security Ruling 96-8p (in assessing residual functional 27 capacity, the ALJ must consider all limitations imposed by all 28 impairments, even non-severe impairments; the limitations due to such See, e.g., DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 4 1 a not severe single impairment may prevent an individual from 2 performing past relevant work . . . ); 20 C.F.R. § 404.1545(e) ( we 3 will consider the limiting effects of all your impairment(s), even 4 those that are not severe, in determining your residual functional 5 capacity ); accord Carmickle v. Commissioner, 533 F.3d at 1164. 6 ALJ thus erred by failing to include all of Plaintiff s limitations in 7 the hypothetical question and by mischaracterizing the vocational 8 expert s testimony. 9 F.3d 1294, 1297 (9th Cir. 1999) (materially inaccurate The Id.; see also Regennitter v. Commissioner, 166 10 characterization of the evidence warrants remand); Lesko v. Shalala, 11 1995 WL 263995, at *7 (E.D.N.Y. Jan. 5, 1995) (same). 12 13 Defendant does not appear to contest the fact that the Dictionary 14 of Occupational Titles ( D.O.T. ) describes the job of physical 15 fitness instructor as requiring, inter alia, frequent (rather than 16 occasional) stooping, crouching and reaching (Defendant s Motion at 3- 17 4; see D.O.T. 153.227-014). 18 should uphold the administrative decision because: (1) Plaintiff 19 assertedly reported that her past relevant work as actually performed 20 did not require any postural activities ; and (2) the ALJ found 21 Plaintiff could perform her past relevant work as actually performed 22 (Defendant s Motion at 3-4). Defendant argues, however, that the Court 23 24 Contrary to Defendant s argument, the Court is unable to conclude 25 that the errors described above were harmless. [A]n ALJ's error is 26 harmless where it is inconsequential to the ultimate non-disability 27 determination. 28 (citations and quotations omitted). Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 5 [W]e must analyze harmlessness 1 in light of the circumstances of the case. 2 Id. at 1121 (citations and quotations omitted). 3 4 [D]espite the burden to show prejudice being on the party 5 claiming error by the administrative agency, the reviewing 6 court can determine from the circumstances of the case that 7 further administrative review is needed to determine whether 8 there was prejudice from the error. 9 enough. Mere probability is not But where the circumstances of the case show a 10 substantial likelihood of prejudice, remand is appropriate 11 so that the agency can decide whether re-consideration is 12 necessary. 13 a borderline question, remand for reconsideration is not 14 appropriate. By contrast, where harmlessness is clear and not 15 16 McCleod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). 17 18 It is true that an ALJ need not always consult a vocational 19 expert to find that a claimant can perform the claimant s past 20 relevant work. 21 1993); Miller v. Heckler, 770 F.2d 845, 850 (9th Cir. 1985). 22 present case, however, the ALJ expressly relied on (and 23 mischaracterized) the vocational expert s testimony in concluding that 24 Plaintiff could perform her past relevant work as generally and 25 actually performed (A.R. 128). 26 from the vocational expert, it is uncertain what evidence the ALJ 27 would have consulted, and what conclusion the ALJ would have reached, 28 in the vocational analysis. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. In the In the absence of any usable testimony 6 1 If it were clear on the present record that even a person with 2 significant reaching and postural limitations could perform the job of 3 physical fitness instructor as Plaintiff actually performed that job, 4 perhaps the Court could deem the ALJ s errors harmless. 5 below, however, the record is unclear in this regard. As discussed 6 7 As Defendant points out, Plaintiff apparently reported that in 8 her past relevant work she taught fitness classes such as aerobics, 9 weight training, for Senior Citizens and students without doing any 10 sitting, climbing, stooping, kneeling, crouching, crawling or reaching 11 (A.R. 283). 12 relevant work required being physically fit, doing demonstrations of 13 physical activity, the use of weight machines, laying [sic] on mats 14 [on] the floor demonstrating balance and strength skills (A.R. 333). 15 Furthermore, Plaintiff testified that in her past relevant work she 16 taught fitness by example, stretching, dancing, jumping, floor work 17 . . . bending knees, and strengthening the upper body through 18 repetitive hand weight exercises, including lifting the hand weights 19 overhead (A.R. 59-61). 20 entailed getting on her hands and knees as well as on her back, and 21 that her job required continuous movement (such as running in place) 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Yet, Plaintiff also apparently reported that her past Plaintiff testified that her floor work 7 1 for 35 minutes nonstop (A.R. 61-62).2 Absent further development,3 2 the record plainly does not support a confident conclusion that a 3 person with any significant reaching or postural limitations could 4 perform the job of physical fitness instructor as Plaintiff actually 5 performed that job. 6 7 The appropriate remedy in the present case is a remand for 8 further administrative proceedings, rather than a reversal with a 9 directive for the payment of immediate benefits. See INS v. Ventura, 10 537 U.S. 12, 16 (2002) (upon reversal of an administrative 11 determination, the proper course is remand for additional agency 12 investigation or explanation, except in rare circumstances). 13 to Plaintiff s argument, it is unclear on the present record whether a 14 person with Plaintiff s residual functional capacity could perform her 15 past relevant work as she actually performed it (see A.R. 283). Contrary 16 17 Plaintiff s request that the case be assigned to a different ALJ 18 is denied. Plaintiff has not carried her considerable burden of 19 demonstrating judicial bias. 20 540, 555 (1994) ( judicial rulings alone almost never constitute a 21 valid basis for a bias or partiality motion . . . judicial remarks See Liteky v. United States, 510 U.S. 22 23 24 25 26 27 28 2 The ALJ found some of Plaintiff s testimony not fully credible, but did not address the credibility of Plaintiff s testimony regarding the requirements of her past relevant work (A.R. 123-28). 3 The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered. This duty exists even when the claimant is represented by counsel. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 8 1 during the course of a trial that are critical or disapproving of, or 2 even hostile to, counsel, the parties, or their cases, ordinarily do 3 not support a bias or partiality challenge ); see also Verduzco v. 4 Apfel, 188 F.3d 1087, 1089-90 (9th Cir. 1999) ( ALJs and other similar 5 quasi-judicial administrative officers are presumed to be unbiased ); 6 Travis v. Sullivan, 985 F.2d 919, 924 (7th Cir. 1993) ( [s]electing a 7 new ALJ is a decision for the [Commissioner] to make when there has 8 been no proof of bias or partiality by the original ALJ in the case ). 9 The regrettable fact that during the administrative hearing in the 10 present case the ALJ resorted to sarcasm while expressing his evident 11 displeasure with the conduct of Plaintiff s counsel is insufficient to 12 prove any bias against Plaintiff, when considered in the context of 13 the entire record. 14 1211, 1216 (9th Cir. 2005) ( In light of the ALJ's detailed and 15 reasoned written grounds for ruling against Bayliss, we conclude that 16 the statements in the ALJ s opinion in which the ALJ expressed 17 displeasure with the conduct of Bayliss s counsel are not sufficient 18 to establish bias. ) (quoting Rollins v. Massanari, 261 F.3d 853, 858 19 (9th Cir. 2001) ( [E]xpressions of impatience, dissatisfaction, 20 annoyance, and even anger, that are within the bounds of what 21 imperfect men and women . . . sometimes display do not establish 22 bias. ) (internal citations omitted). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// See, id.; see also Bayliss v. Barnhart, 427 F.3d 9 1 CONCLUSION 2 3 For all of the foregoing reasons,4 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: September 4, 2013. 10 11 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 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. 10

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