Abdias Leonel Beza Guerra v. Nancy A. Berryhill, No. 2:2019cv00822 - Document 18 (C.D. Cal. 2019)
Court Description: MEMORANDUM 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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Abdias Leonel Beza Guerra v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ABDIAS L.B.G., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ___________________________________) NO. CV 19-822-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 On February 4, 2019, Plaintiff filed a Complaint seeking review 26 of the Commissioner’s denial of disability benefits. 27 2019, the parties consented to a Magistrate Judge. 28 Plaintiff filed a motion for summary judgment. On February 22, On June 11, 2019, On July 11, 2019, Dockets.Justia.com 1 Defendant filed a motion for summary judgment. The Court has taken 2 both motions under submission without oral argument. 3 “Order,” filed February 6, 2019. See L.R. 7-15; 4 BACKGROUND 5 6 Plaintiff asserts disability based on a combination of alleged 7 8 impairments (Administrative Record (“A.R.”) 38-41, 195). The 9 Administrative Law Judge (“ALJ”) found Plaintiff suffers from severe 10 impairments which preclude the performance of Plaintiff’s past 11 relevant work (A.R. 23-26). 12 retains a residual functional capacity “to perform light work as 13 defined in 20 C.F.R. 416.967(b)” (A.R. 23-24). 14 determined that Plaintiff can stand or walk only two hours in an eight 15 hour day and requires an assistive device to ambulate (A.R. 23-24, 16 26). 17 (A.R. 44 (ALJ conceding that Plaintiff’s residual functional capacity 18 equates to a capacity for only sedentary work because a person limited 19 to standing and walking two hours a day “cannot do light work”)). The ALJ purported to find that Plaintiff However, the ALJ also These restrictions effectively limit Plaintiff to sedentary work 20 21 The ALJ further determined that Plaintiff, who had only a sixth 22 grade education in Guatemala, “is not able to communicate in English, 23 and is considered . . . illiterate in English” under 20 C.F.R. 24 416.9641 (A.R. 26, 36-37; but see A.R. 26 (Plaintiff “does speak some 25 English”)). 26 work skills from his past relevant work as an automobile salesperson The ALJ stated that Plaintiff had acquired transferable 27 1 28 Illiteracy is “the inability to read or write.” C.F.R. § 416.964(b)(1). 2 20 1 (A.R. 26). The ALJ also stated that Plaintiff could make the 2 vocational adjustment to perform the sedentary job of telephone 3 solicitor, and the ALJ concluded that Plaintiff is not disabled (A.R. 4 27-28 (adopting vocational expert’s testimony at A.R. 40-45 over the 5 contrary opinion of Plaintiff’s expert at A.R. 236-44)). 6 Before reaching this conclusion of nondisability, the ALJ did not 7 8 inquire of the vocational expert whether an illiterate person who 9 cannot communicate in English can perform the job of telephone 10 solicitor. The ALJ implicitly rejected the argument of Plaintiff’s 11 counsel that Plaintiff would not be able to adjust to the job of 12 telephone solicitor due in part to Plaintiff’s “limited ability to 13 speak English.” 14 taking argument under advisement). See A.R. 41, 50-51 (counsel making argument and ALJ 15 The ALJ observed that Plaintiff testified at the hearing “with 16 17 the assistance of a Spanish interpreter” (A.R. 21).2 18 testified that, when he was an automobile salesperson, he had sold 19 cars only to people who spoke Spanish (A.R. 38). 20 Plaintiff, he then had tried to sell cars to English speakers, “but 21 they wouldn’t buy” (A.R. 38). 22 could perform a job requiring the telephone solicitation of English 23 speakers (A.R. 27-28). 24 /// Plaintiff According to Nevertheless, the ALJ found Plaintiff The Appeals Council denied review (A.R. 1-3). 25 26 2 27 28 Several notations in the record indicate that Plaintiff also had the assistance of a Spanish language interpreter during medical evaluations (A.R. 249, 256, 300, 351, 360, 407, 411, 463). 3 STANDARD OF REVIEW 1 2 Under 42 U.S.C. section 405(g), this Court reviews the 3 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); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 9 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. 10 Substantial evidence is “such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion.” 12 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 13 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 4 DISCUSSION 1 2 3 The ALJ erred by failing properly to consider the limitations of 4 illiteracy and inability to communicate in English in relation to the 5 job of telephone solicitor. Remand is appropriate. 6 Where, as here, a claimant is 55 years of age or older, “[i]n 7 8 order to find transferability of skills to skilled sedentary work 9 . . . there must be very little, if any, vocational adjustment 10 required in terms of tools, work processes, work settings, or the 11 industry.” 12 C.F.R. §§ 404.1568(d)(4), 416.968(d)(4) (the sedentary work must be 13 “so similar to your previous work that you would need to make very 14 little, if any, vocational adjustment”). 15 relied on vocational expert testimony to find that Plaintiff 16 supposedly would require very little vocational adjustment from his 17 prior work as an automobile salesperson to perform sedentary work as a 18 telephone solicitor. 19 expressly considered whether Plaintiff’s English language limitations 20 would affect the transferability of skills or otherwise impact on 21 Plaintiff’s ability to perform the job of telephone solicitor. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 20 C.F.R. pt. 404, Subpt P, App. 2, § 200.00(f); accord 20 In the present case, the ALJ Neither the ALJ nor the vocational expert 5 This 1 was error.3 2 3 The Dictionary of Occupational Titles (“DOT”) provides that a 4 telephone solicitor must be able to “[s]peak before an audience with 5 poise, voice control, and confidence, using correct English” and 6 “[w]rite reports and essays . . . using all parts of speech.” 7 299.357-014 (noting job has a Language Level 3 requirement) (emphasis 8 added). 9 to the vocational expert did not include any English language 10 See DOT In the present case, the hypothetical questions the ALJ posed limitation (A.R. 41-42). 11 12 Where a hypothetical question fails to include all of the 13 claimant’s limitations, the vocational expert’s answer to the question 14 cannot constitute substantial evidence to support an ALJ’s decision. 15 See, e.g., DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); 16 Gamer v. Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. 17 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 18 reference to Plaintiff’s “education” did not suffice to include 19 Plaintiff’s language limitations in the hypothetical questions posed 20 to the vocational expert. 21 626206, at *7 (C.D. Cal. Jan. 30, 2018) (ALJ’s general reference to 22 the claimant’s “educational background,” while omitting any reference 23 to the claimant’s limited language skills, did not make hypothetical The ALJ’s general See, e.g., Kim v. Berryhill, 2018 WL 24 3 25 26 27 28 The error was potentially material. If the ALJ had found that Plaintiff has no transferrable skills from his automobile salesperson job, Plaintiff would be deemed disabled under the Grids. See 20 C.F.R. Pt. 404, Subpt. P. App. 2 (“Grids”) §§ 202.02, 202.03; see also Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989) (a conclusion of disability, directed by the Grids, is irrebuttable). 6 1 questions sufficient). Nor could the ALJ’s error be nullified by the 2 vocational expert’s possible awareness that Plaintiff was being 3 assisted by a Spanish language interpreter at the hearing. 4 Amezcua v. Berryhill, 2017 WL 3253491, at *7 (C.D. Cal. July 31, 2017) 5 (where ALJ failed to pose hypothetical questions to vocational expert 6 accurately reflecting all of the claimant’s relevant characteristics, 7 “it does not become the [vocational expert’s] burden to correct the 8 ALJ and utilize characteristics that the [vocational expert] observes 9 at the hearing,” i.e., the use of an interpreter). See, e.g., 10 11 A proper hypothetical question adding an inability “to 12 communicate in English” may well have elicited a response from the 13 vocational expert that the hypothetical claimant could not work as a 14 telephone solicitor. 15 very well have elicited a response that Plaintiff did not have skills 16 that would transfer to the telephone solicitor job. 17 Colvin, 2015 WL 1457974, at *6 n.5 (C.D. Cal. March 30, 2015) 18 (“customer service sales skills” acquired in restaurant work by a 19 claimant “closely approaching advanced age” could not transfer to a 20 telemarketer job because the telemarketer job would require 21 “vocational adjustments ‘in terms of tools, work process, work 22 settings [and] industry’”) (citations omitted). See DOT 299.357-014. Such question also may See Cooley v. 23 24 The ALJ also erred by invoking DOT 299.357-014 without sufficient 25 explanation regarding the conflict between the information in the DOT 26 and the limitations the ALJ found to exist. 27 requirements set forth in the DOT conflict with the claimant’s 28 limitations, the ALJ must “definitively explain this deviation.” 7 When, as here, the job 1 Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (ALJ erred in 2 failing to address the impact of claimant’s illiteracy on claimant’s 3 ability to perform a particular job). 4 to explain the deviation from the DOT’s language requirements. 5 Rather, the ALJ stated that the information in the DOT was 6 “consistent” with the vocational expert’s testimony, despite the fact 7 that the ALJ never asked the vocational expert if a person who “is not 8 able to communicate in English” could work as a telephone solicitor 9 (A.R. 27). Here, the ALJ made no attempt 10 11 In attempted avoidance of the conclusion that the ALJ erred, 12 Defendant argues that: (1) Plaintiff allegedly waived any language 13 issue by supposedly failing to argue the issue before the 14 Administration; (2) Plaintiff allegedly “did not need a translator at 15 the administrative hearing”; and (3) according to the DOT, the 16 automobile salesperson job requires a language ability level of four, 17 whereas the telephone solicitor job requires a language ability level 18 of three. 19 arguments do not alter the Court’s conclusion. See Defendant’s Motion, p. 2. As discussed below, these 20 21 First, as noted above, Plaintiff’s counsel did argue to the ALJ 22 that Plaintiff’s limited ability to speak English impacted whether 23 Plaintiff could adjust to the job of telephone solicitor (A.R. 50-51). 24 Counsel also argued to the Appeals Council that Plaintiff did not have 25 the language ability to perform the job of telephone solicitor (A.R. 26 246). 27 unwaivable duty to reconcile apparent conflicts between the DOT and 28 vocational expert testimony. No waiver occurred. In any event, the Administration has an See Lamear v. Berryhill, 865 F.3d 1201, 8 1 1206 (9th Cir. 2017). 2 3 Second, the transcript of the administrative hearing reflects 4 that “Mr. Conception was duly sworn to act as interpreter” (A.R. 21). 5 The ALJ acknowledged that Plaintiff “testified with the assistance of 6 a Spanish interpreter” (A.R. 36). 7 Defendant’s argument regarding a supposed lack of need for 8 translation. Thus, the record does not support 9 10 Third, while the DOT provides descriptions for how jobs are 11 usually performed in the national economy, the record suggests that 12 Plaintiff’s automobile salesperson job as actually performed was 13 essentially confined to Spanish speaking customers (A.R. 38). 14 Plaintiff testified he had not succeeded in selling any automobiles to 15 non-Spanish speaking customers (id.). 16 how automobile salesperson jobs usually are performed is inapposite to 17 the issues herein. Indeed, Thus, the DOT’s description of 18 19 The Court is unable to deem the errors in the present case to 20 have been harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th 21 Cir. 2012) (an error “is harmless where it is inconsequential to the 22 ultimate non-disability determination”) (citations and quotations 23 omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error 24 not harmless where “the reviewing court can determine from the 25 ‘circumstances of the case’ that further administrative review is 26 needed to determine whether there was prejudice from the error”); see 27 also Kim v. Berryhill, 2018 WL 626206, at *7 (ALJ’s failure to resolve 28 apparent conflict between claimant’s English language abilities and 9 1 vocational expert’s testimony that the claimant could perform work 2 that required a Language Level 4 – where record showed that claimant’s 3 past relevant work as actually performed was at a store where she 4 could speak to customers and employees in Korean – could not be deemed 5 harmless because vocational expert’s testimony left unresolved 6 potential inconsistencies in the evidence) (citation omitted). 7 8 9 The circumstances of this case suggest that further administrative review could remedy the ALJ’s error. Therefore, remand 10 is appropriate. See McLeod v. Astrue, 640 F.3d at 888; see also INS 11 v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 12 determination, the proper course is remand for additional agency 13 investigation or explanation, except in rare circumstances); Leon v. 14 Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2018) (“an automatic award of 15 benefits in a disability benefits case is a rare and prophylactic 16 exception to the well-established ordinary remand rule”); Dominguez v. 17 Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (“Unless the district court 18 concludes that further administrative proceedings would serve no 19 useful purpose, it may not remand with a direction to provide 20 benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 21 Cir. 2014) (remand for further administrative proceedings is the 22 proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 23 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) 24 (remand for further proceedings rather than for the immediate payment 25 of benefits is appropriate where there are “sufficient unanswered 26 questions in the record”). 27 questions in the present record relating to the transferability of 28 skills from Plaintiff’s past relevant work and Plaintiff’s ability to There remain significant unanswered 10 1 perform the telephone solicitor job. 2 CONCLUSION 3 4 5 For all of the foregoing reasons,4 Plaintiff’s and Defendant’s 6 motions for summary judgment are denied and this matter is remanded 7 for further administrative action consistent with this Opinion. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 DATED: August 9, 2019. 11 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 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 immediate payment of benefits would not be appropriate at this time. 11
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