Miguel Hernandez v. Nancy A. Berryhill, No. 2:2019cv01299 - Document 25 (C.D. Cal. 2020)
Court Description: MEMORANDUM AND OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (see document for further details) (hr)
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Miguel Hernandez v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 MIGUEL A. HERNANDEZ, Case No. CV 19-1299-AS 11 Plaintiff, MEMORANDUM OPINION 12 v. 13 14 ANDREW M. SAUL, Commissioner of Social Security,1 AND ORDER OF REMAND Defendant. 15 16 17 For the reasons discussed below, it is hereby ordered that, 18 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 19 remanded for further administrative action consistent with this 20 Opinion. 21 22 PROCEEDINGS 23 24 On February 21, 2019, Plaintiff filed a Complaint seeking 25 review of the Commissioner’s denial of Plaintiff’s applications 26 1 27 28 Andrew M. Saul, Commissioner of Social Security, is substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 for 2 (“DIB”), and supplemental security income (“SSI”), respectively, 3 under Titles II and XVI of the Social Security Act. 4 On July 23, 2019, Defendant filed an Answer and the Administrative 5 Record (“AR”). 6 proceed before the undersigned United States Magistrate Judge. 7 (Dkt. Nos. 14-15). 8 Stipulation 9 positions regarding Plaintiff’s claims. a period of disability and (Dkt. Nos. 18-19). disability insurance benefits (Dkt. No. 1). The parties have consented to On December 23, 2019, the parties filed a Joint (“Joint Stip.”) setting forth their (Dkt. No. 26). respective The Court 10 has taken this matter under submission without oral argument. 11 C.D. Cal. C. R. 7-15. See 12 13 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 14 15 On November 12, 2015, Plaintiff, formerly employed as a trunk 16 crane operator and light truck driver (see AR 29, 60, 269, 307), 17 filed his DIB and SSI applications alleging a disability onset date 18 of January 1, 2014. 19 denied on June 13, 2016. 20 requested a hearing before an Administrative Law Judge (“ALJ”).2 21 (AR 164-65). 22 where Plaintiff was represented by counsel and testified with the 23 assistance of a Spanish-language interpreter. 24 ALJ also heard testimony from vocational expert (“VE”) Kristan (AR 239-48). Plaintiff’s applications were (AR 157-61). On June 28, 2016, Plaintiff On January 23, 2018, ALJ Paul Coulter held a hearing (See AR 51-65). The 25 26 27 28 2 It appears that there was no reconsideration of Plaintiff’s applications prior to the hearing before the ALJ. (See AR 22). 2 1 Cicero. 2 decision denying Plaintiff’s applications. (See AR 60-63). On February 12, 2018, the ALJ issued a (See AR 22-31). 3 4 The ALJ applied the requisite five-step process to evaluate 5 Plaintiff’s case. 6 the insured status requirements through December 31, 2015, and had 7 not been engaged in substantial gainful activity since his alleged 8 disability onset date of January 1, 2014. 9 the ALJ found that Plaintiff’s epilepsy/seizure disorder was a At step one, the ALJ found that Plaintiff met (AR 24). At step two, 10 severe impairment.3 11 that Plaintiff’s impairments did not meet or medically equal the 12 severity of any of the listings found in 20 C.F.R Part 404, Subpart 13 P, Appendix 1.4 (AR 24). At step three, the ALJ determined (AR 26). 14 15 16 Next, the ALJ found that Plaintiff had the following Residual Functional Capacity (“RFC”)5: 17 18 19 20 21 22 23 24 25 26 27 3 The ALJ found that Plaintiff’s history of vision problem were non-severe and that Plaintiff’s anxiety disorder and adjustment disorder do not cause more than minimal limitation in his ability to perform basic mental work activities and are therefore non-severe. (AR 24-25) 4 The ALJ specifically considered whether Plaintiff meets the criteria of listing 11.02 (epilepsy), 2.03 (contraction of visual field), and 2.04 (loss of visual efficiency) and concluded that he did not. 5 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 28 3 1 [Plaintiff can] perform medium work6 as defined in 20 2 C.F.R. 3 lift/carry and push/pull 50 pounds occasionally and 25 4 pounds frequently; stand/walk for about 6 hours and sit 5 for about 6 hours in an 8-hour day. Moreover, [Plaintiff] 6 is capable of frequent postural limitations, frequent 7 overhead reaching, 8 Further, [Plaintiff] 9 hazards, such as machinery and heights and should be 10 404.1567(c) and and 416.967(c) frequent should in that [he] can handling/fingering. avoid all exposure to precluded from jobs requiring driving. 11 12 (AR 26-27). 13 unable to perform any past relevant work. 14 the VE’s testimony at step five, the ALJ found that Plaintiff, with 15 his age (fifty-two on the alleged disability onset date), “marginal 16 education,” work experience, and RFC, can perform the following 17 representative jobs existing in significant numbers in the national 18 economy: store laborer (Dictionary of Occupational Titles (“DOT”) 19 922.687-058), food service worker (DOT 319.677-014), and cleaner 20 (DOT 323.687-010). 21 that Plaintiff has not been under a disability, as defined in the 22 Social Security Act, from January 1, 2014, through the date of the 23 decision. At step four, the ALJ determined that Plaintiff is (AR 29-30). (AR 29). Relying on Accordingly, the ALJ concluded (AR 30). 24 25 26 6 27 28 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). 4 1 On January 10, 2019, the Appeals Council denied Plaintiff’s 2 request to review the ALJ’s decision. 3 now seeks judicial review of the ALJ’s decision, which stands as 4 the final decision of the Commissioner. 5 1383(c). (See AR 1-4). Plaintiff See 42 U.S.C. §§ 405(g), 6 7 STANDARD OF REVIEW 8 9 This Court reviews the Administration’s decision to determine 10 if it is free of legal error and supported by substantial evidence. 11 See 12 “Substantial evidence” is more than a mere scintilla, but less than 13 a preponderance. 14 2014). 15 finding, “a court must consider the record as a whole, weighing 16 both evidence that supports and evidence that detracts from the 17 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 18 1035 (9th Cir. 2001) (internal quotation omitted). 19 “[i]f the evidence can support either affirming or reversing the 20 ALJ’s conclusion, [a court] may not substitute [its] judgment for 21 that of the ALJ.” 22 (9th Cir. 2006). Brewes To v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. determine whether substantial evidence supports a As a result, Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 23 24 DISCUSSION 25 26 Plaintiff contends that (1) substantial evidence does not 27 support the ALJ’s findings that Plaintiff can perform the work of 28 5 1 a store laborer, a food service worker, or a cleaner;7 and (2) 2 Plaintiff should be able to present and rely on vocational data 3 from non-DOT sources such as the Occupational Outlook Handbook 4 (“OOH”), the Occupational Information Network (“O*NET”), and the 5 Occupational Requirements Survey (“ORS”). 6 25). 7 erred at step five, and remand is warranted for further proceedings 8 to determine, based on reliable vocational data and VE testimony, 9 whether (See Joint Stip. at 4- After reviewing the record, the Court finds that the ALJ there is a significant number of jobs available for 10 Plaintiff in light of his language ability and other relevant 11 factors. 12 13 A. Applicable Law for ALJ’s Step-Five Finding 14 15 At step five of the five-step process, the Commissioner has 16 the burden to demonstrate that the claimant can perform some work 17 that exists in “significant numbers” in the national or regional 18 economy, taking into account the claimant’s RFC, age, education, 19 and work experience. 20 (9th Cir. 2006); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c). 21 “In making this determination, the ALJ relies on the DOT, which is 22 the [Agency’s] primary source of reliable job information regarding 23 jobs that exist in the national economy.” 24 F.3d 842, 845–46 (9th Cir. 2015) (citation omitted); see 20 C.F.R. 25 § 404.1566(d)(1) (noting that the Agency “will take administrative Lounsburry v. Barnhart, 468 F.3d 1111, 1114 Zavalin v. Colvin, 778 26 27 28 7 Plaintiff presents this as three separate issues, one for each job, but the Court addresses them together. 6 1 notice 2 governmental and other publications,” including the DOT); SSR 00- 3 4p, 4 relies] primarily on the DOT (including its companion publication, 5 the SCO) for information about the requirements of work in the 6 national economy.”). 7 notice of reliable job information available in other sources, such 8 as the OOH, which is published by the Bureau of Labor Statistics. 9 20 C.F.R. § 404.1566(d)(2)-(5); 20 C.F.R. § 416.966(d)(2)-(5); 10 at of *2 reliable (“In job making information disability available from determinations, various [the Agency The Agency may also take administrative Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 11 12 In addition to the DOT, the ALJ generally relies on the 13 testimony of the VE to make the appropriate determination at step 14 five. 15 may call upon the VE to testify as to “(1) what jobs the claimant, 16 given 17 availability of such jobs in the national economy.” 18 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). 19 “poses hypothetical questions to the [VE] that set out all of the 20 claimant’s 21 (citation omitted). 22 limitations 23 substantial evidence in the record,” then the ALJ may properly rely 24 on the VE’s response. 25 Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (testimony of qualified 26 vocational expert constitutes substantial evidence); Johnson v. 27 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (“[T]he ALJ was within 28 his rights to rely solely on the vocational expert’s testimony.”) 20 C.F.R. § 404.1566(e); 20 C.F.R. § 416.966(e). his or her [RFC], impairments that the would for be the able [VE’s] to do; and An ALJ (2) the Tackett v. In doing so, an ALJ consideration.” Id. When a hypothetical includes “all of the ALJ found credible and supported by Bayliss, 427 F.3d at 1217-18; Osenbrock v. 7 1 (quoting Conn v. Sec’y of Health and Human Servs., 51 F.3d 607, 2 610 (6th Cir. 1995)). 3 foundation 4 1566(c)(5)(e); SSR 00-4P; Johnson, 60 F.3d at 1435-36. 5 VE’s “recognized expertise provides the necessary foundation for 6 his or her testimony. 7 Bayliss, 427 F.3d at 1218. of the Generally, an ALJ need not inquire into the VE's testimony. See 20 C.F.R § 404. Instead, a Thus, no additional foundation is required.” 8 9 When there is an apparent conflict between the VE’s testimony 10 and the DOT, the ALJ is required to reconcile the inconsistency. 11 Massachi v. Astrue, 486 F.3d 1149, 1153–54 (9th Cir. 2007). 12 ALJ need only resolve conflicts between the VE’s testimony and the 13 DOT that are “apparent or obvious,” which occurs only when VE 14 testimony is “at odds with” DOT requirements that are “essential, 15 integral, or expected” for a particular occupation. 16 Colvin, 844 F.3d 804, 808 (9th Cir. 2016). An Gutierrez v. 17 18 B. Remand Is Warranted for the ALJ’s Step-Five Finding 19 20 Here, the ALJ presented a hypothetical to the VE based on the 21 ALJ’s RFC assessment, and the VE testified that Plaintiff could 22 perform several representative jobs existing in significant numbers 23 in the national economy – specifically, store laborer (DOT 922.687- 24 058), food service worker (DOT 319.677-014), and cleaner (DOT 25 323.687-010). 26 based on the DOT and her vocational knowledge. 27 relied on this testimony in his decision to conclude that Plaintiff 28 is not disabled. (AR 61-62). The VE stated that her testimony was (AR 29-30). 8 (AR 63). The ALJ 1 Plaintiff contends that the VE’s testimony conflicts with 2 reliable vocational sources, including the DOT, which suggest that 3 Plaintiff’s limitations render these jobs unavailable. 4 Stip. at 5-8, 12-17). 5 inability to understand or communicate in English. 6 The ALJ never addressed Plaintiff’s English inability, except by 7 noting 8 interpreter at the hearing. 9 reflected in the record. that (See Joint Among these limitations is Plaintiff’s Plaintiff testified through (AR 22). a (Id. at 6, 13). Spanish-language However, it is amply For example, Plaintiff specifically 10 reported that he could not speak, read, or understand English, and 11 could not “write more than [his] name in English.” 12 Plaintiff used an interpreter at his medical examinations and at 13 the hearing before the ALJ, and his hearing counsel stated that 14 Plaintiff does not speak English. 15 Moreover, Plaintiff testified that the last grade of school he 16 completed was “Junior high in Mexico.” (AR 267). (See AR 53, 64, 404, 417). (AR 55). 17 18 As Plaintiff points out, the DOT classifies two of the 19 occupations identified by the VE (food service worker and cleaner) 20 as the other 21 occupation (store laborer) as a language level 1 position. DICOT 22 323.687-010, 1991 WL 672782; DICOT 319.677-014, 1991 WL 672771; 23 DICOT 922.687-058, 1991 WL 688132. 24 as classified in the DOT require at least some ability to speak 25 and write in English. language level 2 positions, and it classifies This means that all three jobs See DICOT, App. C., 1991 WL 688702 (defining 26 27 28 9 1 language levels).8 2 presents an “apparent conflict” in the record.9 3 Massanari, 249 F.3d 840, 843 n.1 (9th Cir. 2001) (requirements of 4 Language 5 claimant who could speak Spanish but spoke “very little English,” 6 and whom the ALJ found “illiterate in English”); Diaz v. Berryhill, 7 2018 WL 1187530, at *6 (C.D. Cal. Mar. 7, 2018) (“A plain reading 8 of the DOT’s language level 1 definition requires language ability 9 more advanced than someone who cannot speak English.”); Oliva– 10 Hernandez v. Berryhill, 2017 WL 6403085, at *3–4 (C.D. Cal. Dec. 11 14, 2017) (finding ALJ erred in accepting VE’s testimony that a Level 1 Plaintiff correctly contends that the DOT thus occupations inconsistent with See Pinto v. abilities of 12 8 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A language level 1 position requires that the employee be able to speak and write simple sentences, and a language level 2 position requires the employee to read at a rate of 190 words per minute, write compound and complex sentences properly, and speak clearly and distinctly with correct pronunciation. DICOT, App. C., 1991 WL 688702. The DOT does not specify that the “language” must be English, but the Ninth Circuit has reasoned that such a requirement is the “most persuasive reading” of the DOT. Pinto v. Massanari, 249 F.3d 840, 844 n.2 (9th Cir. 2001). 9 Plaintiff specifically asserts that an “apparent conflict exists between the general educational development described in the DOT [which encompasses language level classifications] and a marginal education found by the ALJ.” (Joint Stip. at 13, 16). Because Plaintiff makes this assertion while contrasting his English inability with the language/literacy requirements of the respective occupations defined in the DOT and other sources, the Court construes Plaintiff’s argument as raising a conflict between the DOT and the VE’s testimony in light of his inability to communicate in English. (See id.). Although Plaintiff frames this as a conflict with the ALJ’s “marginal education” finding, the Agency considers English language ability as an “education factor.” See 20 C.F.R. §§ 404.1564(b), 416.964(b) (“The term ‘education’ also includes how well you are able to communicate in English since this ability is often acquired or improved by education”); 20 C.F.R. 404.1564(b)(5), 416.964(b)(5) (“Since the ability to speak, read and understand English is generally learned or increased at school we may consider this an educational factor”). 10 1 functionally illiterate individual could perform occupations at 2 language level 1); Obeso v. Colvin, 2015 WL 10692651, at *15-16 3 (E.D. Cal. Apr. 20, 2015) (remanding where the ALJ found a claimant 4 with limited English could perform occupations at language level 1 5 based 6 explanation for her deviation from the DOT”); Salgado v. Astrue, 7 2011 WL 717251, at *4 (C.D. Cal. Feb. 22, 2011) (same, where the 8 jobs at issue required language level 1 or level 2). on the VE’s testimony and “the ALJ did not offer any 9 10 The ALJ erred by failing to address this apparent conflict in 11 light of Plaintiff’s inability to communicate in English. 12 Massachi, 486 F.3d at 1153–54; Pinto, 249 F.3d 840, 846 (9th Cir. 13 2001) (ALJ erred by failing to clarify how claimant’s inability to 14 speak 15 perform her past relevant work, given that the DOT description 16 required language ability above what the claimant possessed). 17 Indeed, the ALJ does not seem to have considered Plaintiff’s 18 language limitation in any respect, despite the requirement to do 19 so. 20 “specifically take into account any . . . . linguistic limitation 21 of [the claimant] (including any lack of facility with the English 22 language) in determining, with respect to the eligibility of such 23 individual for 24 416.964(b) (providing 25 claimant’s inability to communicate in English when evaluating the 26 claimant’s educational background as a vocational factor “[b]ecause 27 English is the dominant language of the country, [and] it may be 28 difficult for someone who doesn’t speak and understand English to English factored into his analysis that claimant See could See 42 U.S.C. § 1383(c)(1)(A) (requiring the Commissioner to benefits . . . .”); that the 11 20 C.F.R. Commissioner §§ will 404.1564(b), consider a 1 do a job, regardless of the amount of education the person may have 2 in another language [or level of fluency in another language].”). 3 Remand is warranted on this issue.10 4 5 As for Plaintiff’s contentions regarding other vocational 6 sources and limitations,11 the ALJ was not obligated to address 7 non-DOT sources at the hearing. 8 1102, 1109 (9th Cir. 2017), as amended (Feb. 18, 2018); Seaberry 9 v. Berryhill, 2018 WL 1425985, at * 6 (C.D. Cal. March 22, 2018). 10 Moreover, Plaintiff’s counsel’s own convoluted lay analysis of the 11 statistical data from these sources is inadequate to demonstrate 12 that the VE’s job numbers were incorrect. 13 Saul, 2019 WL 6652086, at *6 (S.D. Cal. Dec. 5, 2019) (“Lay 14 assessments alone are insufficient to undermine the VE's analysis; 15 such attempts have been uniformly rejected by numerous courts.”) 16 (internal quotation omitted) (collecting cases); Valenzuela v. 17 Colvin, 2013 WL 2285232, at *4 (C.D. Cal. May 23, 2013) (rejecting See Shaibi v. Berryhill, 883 F.3d See Jose Alfredo G. v. 18 10 19 20 21 22 23 24 25 26 27 28 Plaintiff does not seek an immediate award of benefits, only “remand[] for further proceedings to take [VE] testimony of whether any significant number of jobs exists for an individual of [Plaintiff’s] medical-vocational profile.” (Joint Stip. at 26). That is the appropriate relief here. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014) (“[W]e generally remand for an award of benefits only in rare circumstances, where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed.”) (internal quotations and citations omitted). 11 Plaintiff argues, based on information from several vocational sources in the record - including the OOH, O*NET, and ORS - that the jobs identified by the VE do not exist in significant numbers for a person with Plaintiff’s education, language ability, exertional level, and limitations in walking, standing, and sitting. (See Joint Stip. at 5-8, 12-17). 12 1 plaintiff’s assessment, in part, because it “was unaccompanied by 2 any analysis or explanation from a vocational expert or other 3 expert source to put the raw data into context”). 4 Plaintiff properly raised this issue by submitting additional 5 evidence to the Appeals Council (see AR 347-49, 441-80), and he 6 demonstrates 7 consideration with a VE on remand, in conjunction with the language 8 conflict addressed above. 9 4148351, at at *3 least (C.D. that the evidence merits However, further See Cymande S. v. Berryhill, 2019 WL Cal. May 16, 2019) (remanding for 10 consideration of OOH evidence submitted to the Appeals Council); 11 Harris v. Berryhill, 2018 WL 3493778, at *6 (C.D. Cal. July 20, 12 2018) (same). 13 14 CONCLUSION 15 16 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 17 the decision of the Commissioner and REMANDING this matter for 18 further proceedings consistent with this decision. 19 ORDERED that the Clerk of the Court serve copies of this Order and 20 the Judgment on counsel for both parties. IT IS FURTHER 21 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 24 Dated: March 10, 2020 25 ______________/s/_____________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 26 27 28 13
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