Cynthia Estrada v.Michael J. Astrue, No. 5:2010cv01843 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the action is remanded to the Agency for further consideration consistent with this Memorandum Opinion and Order. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CYNTHIA ESTRADA, Plaintiff, 11 12 13 14 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 15 Case No. ED CV 10-1843 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by 19 Defendant Social Security Administration ( the Agency ), denying her 20 applications for Supplemental Security Income ( SSI ) and Disability 21 Insurance Benefits ( DIB ). 22 Judge ( ALJ ) erred by: 1) failing to develop the record regarding her 23 hearing loss; 2) failing to properly rate the severity of her mental 24 impairment; and 3) determining that she could work as an office helper 25 and clerk. 26 ALJ erred and remands the case to the Agency for further proceedings 27 consistent with this opinion. 28 She claims that the Administrative Law For the following reasons, the Court concludes that the 1 II. BACKGROUND 2 Plaintiff applied for SSI and DIB in August 2008, alleging that 3 she had been unable to work since August 2001, due to carpal tunnel 4 syndrome and problems with her shoulders, arms and hands. 5 strative Record ( AR ) 94-101, 109.) 6 tions initially and again on reconsideration. 7 Plaintiff then requested and was granted a hearing before an ALJ. 8 67-68.) 9 hearing and testified. (Admini- The Agency denied the applica(AR 55-59, 62-66.) (AR On May 18, 2010, Plaintiff appeared without counsel at the (AR 20-46.) On July 20, 2010, the ALJ issued 10 a decision, denying benefits. 11 denied Plaintiff s request for review (AR 1-3), she commenced this 12 action. 13 14 (AR 11-19.) III. A. 15 After the Appeals Council ANALYSIS Plaintiff s Alleged Hearing Loss In her first claim of error, Plaintiff contends that the ALJ 16 failed to discharge his duty to fully develop the record because he 17 did not investigate her alleged hearing loss. 18 the following reasons, the Court agrees. 19 (Joint Stip. 2-6.) For Plaintiff testified that she is completely deaf in [her] right 20 ear. 21 that there was no objective evidence to support this claim and, 22 therefore, her alleged hearing loss was not a medically determinable 23 impairment. 24 (AR 26.) The ALJ noted Plaintiff s testimony but concluded (AR 14.) The ALJ erred in reaching this conclusion. In fact, there was 25 some arguably objective evidence in the record establishing that 26 Plaintiff had hearing loss: Plaintiff apparently had a hearing test, 27 an audiogram, and, after reviewing the findings from this test, her 28 treating doctor concluded that she was a candidate for a hearing aid. 2 1 (AR 363.) This evidence provided objective support for Plaintiff s 2 claim that she was experiencing hearing loss and triggered the ALJ s 3 duty to develop the record. 4 *3 (N.D. Cal. May 22, 1998) ( [T]he presence of some objective 5 evidence in the record suggesting the existence of a condition which 6 could have a material impact on the disability decision generally 7 triggers the ALJ s duty to develop the record further ) (citing Smolen 8 v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)); Wainwright v. Sec y of 9 Health & Human Servs., 939 F.2d 680, 682 (9th Cir. 1991)). See Breen v. Callahan, 1998 WL 272998, at This is 10 particularly true here, where Plaintiff was representing herself 11 before the Agency. 12 Cir. 2001); Smolen, 80 F.3d at 1288. 13 harmless because the ALJ s ultimate conclusion that Plaintiff could 14 work as an information clerk is called into question if she is unable 15 to hear.1 16 2008) (holding ALJ s error is harmless if it was inconsequential to 17 the ultimate nondisability determination). 18 See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Further, the error was not See Carmickle v. Comm r, 533 F.3d 1155, 1162 (9th Cir. The Agency contends that the ALJ did not err. It cites cases and 19 regulations which stand for the proposition that the burden is on the 20 claimant to prove that she is disabled. 21 argues that, because Plaintiff failed to submit proof of a hearing 22 impairment and because there was no ambiguity in the record, the ALJ s 23 duty to supplement the record was not called into play. 24 25 (Joint Stip. at 7-8.) It Thus, as in many social security cases involving this issue, the Court is confronted with competing arguments, both supported by 26 27 28 1 The vocational expert testified that Plaintiff would have difficulty performing the information clerk job if she could not hear in one ear. (AR 43.) 3 1 seemingly contradictory yet controlling authority, that it was the 2 other side s obligation to obtain the records supporting the 3 claimant s alleged impairment. 4 duty to fully and fairly develop the record, citing cases like Smolen, 5 80 F.3d at 1288. 6 Plaintiff has the burden to produce evidence that she is disabled, 7 citing cases like Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 8 1999). 9 competing authority, the Court sides with Plaintiff here because she 10 complained that she was hard of hearing, there was objective medical 11 evidence that this was true, and she was representing herself before 12 the Agency. 13 B. Plaintiff argues that the ALJ has a (Joint Stip. at 5.) (Joint Stip. at 7.) And the Agency counters that In the face of these competing claims and Plaintiff s Alleged Mental Impairment 14 Plaintiff argues that the ALJ erred in evaluating her alleged 15 mental impairment, too, by: 1) determining that she did not have a 16 severe mental impairment; 2) failing to properly rate the severity of 17 the impairment; and 3) failing to develop the record further regarding 18 the impairment. 19 Court concludes that there is no merit to this claim. (Joint Stip. 9-16.) For the following reasons, the 20 Plaintiff testified that she experienced anxiety attacks - 21 caused by pain and worries about her husband not working--but was not 22 taking any medication to treat her condition. 23 appears that she had never been treated for anxiety attacks or anxiety 24 in general. 25 the ALJ found that Plaintiff did not have a medically determinable 26 severe mental impairment. 27 was error. 28 his duty to develop the record here because Plaintiff did not present (AR 32, 35.) It also In spite of Plaintiff s testimony about anxiety attacks, (AR 13-17.) The Court disagrees. Plaintiff contends that this The ALJ did not fail to discharge 4 1 any objective medical evidence documenting a mental impairment. See, 2 e.g., Breen, 1998 WL 272998, at *3. 3 not trigger the ALJ s duty to develop the record on this issue, 4 either, because, unlike the issue of Plaintiff s hearing impairment, 5 there was no objective evidence that she suffered from anxiety 6 attacks. 7 Plaintiff s testimony. 8 and Plaintiff has not challenged that finding. 9 no credible evidence in the record that Plaintiff suffered from Plaintiff s testimony alone did Thus, the only arguable evidence in the record was But the ALJ found that she was not credible As a result, there was 10 anxiety and the ALJ was not obligated to further develop the record on 11 this issue. 12 2005); 20 C.F.R. §§ 404.1508, 416.908 ( A physical or mental 13 impairment must be established by medical evidence consisting of 14 signs, symptoms, and laboratory findings, not only by your statement 15 of symptoms . . . . ); Social Security Ruling 96-4p ( [R]egardless of 16 how many symptoms an individual alleges, or how genuine the 17 individual s complaints may appear to be, the existence of a medically 18 determinable physical or mental impairment cannot be established in 19 the absence of objective medical abnormalities; i.e., medical signs 20 and laboratory findings. ). 21 the severity of Plaintiff s alleged mental impairment. 22 not required to undergo the special technique for rating mental 23 impairments because Plaintiff did not establish that she had a 24 medically determinable mental impairment. 25 416.920a(b). See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. Nor did the ALJ err in failing to rate 26 27 28 5 The ALJ was 20 C.F.R. §§ 404.1520a(b), 1 C. The ALJ s Finding That Plaintiff Could Work As An Office Helper 2 And Reception Information Clerk 3 Plaintiff contends that the ALJ erred when he concluded that she 4 could work as an office helper and reception information clerk because 5 these jobs require her to perform functions that she is not capable of 6 doing. 7 in part, as explained below. 8 9 (Joint Stip. 17-22, 24-25.) The Court agrees with Plaintiff At step five of the sequential evaluation process, the Agency has the burden of establishing that a claimant is capable of performing 10 jobs. 11 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 12 through the use of a vocational expert. 13 416.966(e); see also Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 14 1999). 15 notice of reliable job information contained in various publications, 16 including the Dictionary of Occupational Titles ( DOT ). 17 §§ 404.1566(d), 416.966(d). 18 the characteristics of jobs in the national economy. 19 Massanari, 249 F.3d 840, 845 46 (9th Cir. 2001). 20 20 C.F.R. §§ 416.920(f),(g), 416.960(c); see Johnson v. This burden can be met See 20 C.F.R. §§ 404.1566(e), The existence of other jobs may be established by taking 20 C.F.R. The DOT is the presumptive authority on Pinto v. Nevertheless, the DOT is not the sole source of this information 21 and the Agency may rely on the testimony of a vocational expert for 22 information on jobs. 23 on a vocational expert s testimony, an ALJ must inquire whether the 24 testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 25 1152 (9th Cir. 2007); SSR 00 4p. If it does, the vocational expert is 26 required to provide a persuasive rationale supported by the evidence 27 to justify the departure. 28 1042 (9th Cir. 2008). Johnson, 60 F.3d at 1435. But, before relying See Tommasetti v. Astrue, 533 F.3d 1035, 6 1 2 In the case at bar, the ALJ found that Plaintiff could perform light work with the following limitations: 3 no crawling, unprotected heights, ladders, ropes or 4 scaffolds; frequent gross manipulation; occasional fine 5 manipulation with bilateral upper extremities; occasional 6 reaching at or above shoulder level with the left upper 7 extremity; no reaching at or above shoulder level with the 8 right upper extremity; no forceful grasping or torquing. 9 (AR 14.) 10 The ALJ called a vocational expert to testify about what 11 Plaintiff could still do despite her limitations. 12 The vocational expert testified that an individual with Plaintiff s 13 abilities could work as an officer helper (DOT No. 239.567-010) and a 14 receptionist information clerk (DOT No. 237.367-018). 15 Plaintiff claims that this testimony was inconsistent with the DOT and 16 the vocational expert never explained why. 17 Plaintiff s view, both jobs exceed her limitations because they 18 involve fine manipulation, reaching, and forceful grasping or 19 torquing, which she cannot do. 20 concludes that Plaintiff is partially correct. 21 (AR 18, 39-43.) (AR 41.) (Joint Stip. 17-22.) In For the following reasons, the Court The ALJ determined that Plaintiff was limited to occasional fine 22 manipulation. (AR 14.) The job of office helper requires frequent 23 fingering.2 24 considers fine manipulation to be equivalent to fingering in the 25 DOT. DOT No. 239.567-010. (Joint Stip. 22) Like the Agency, the Court Thus, Plaintiff s restriction to only 26 27 28 2 The job of receptionist information clerk requires only occasional fingering and therefore does not conflict with Plaintiff s ability to perform occasional fine manipulation. DOT No. 237.367-018. 7 1 occasional fine manipulation, i.e., occasional fingering, precludes 2 her from performing a job that requires frequent fingering. 3 vocational expert did not provide any explanation for the obvious 4 contradiction between what Plaintiff can do and what is required to 5 perform this job. 6 Plaintiff could perform the job of office helper is not supported by 7 substantial evidence. (AR 42.) And the Accordingly, the ALJ s determination that See Tommasetti, 533 F.3d at 1042.3 8 Plaintiff argues that there are other inherent conflicts between 9 her residual functional capacity and the DOT job descriptions for the 10 office helper and information clerk jobs. She argues, for example, 11 that both require frequent reaching, which conflicts with her 12 restriction on reaching at or above shoulder level with her right arm 13 and only occasionally with her left arm. 14 inherent conflict. 15 the ability to frequently reach at or above shoulder level. 16 Rodriguez v. Astrue, 2008 WL 2561961, at *2 (C.D. Cal. June 25, 2008) 17 (explaining that reaching in the DOT does not necessarily entail The Court does not see the The ability to frequently reach does not encompass See 18 19 20 21 22 23 24 25 26 27 28 3 The Agency urges the Court to affirm the ALJ s decision, arguing that, even though the DOT indicated that an office helper frequently engaged in fine manipulation, substantial evidence in the record supported a finding that Plaintiff could perform such activity. (Joint Stip. 23.) It argues further that the ALJ apparently intended to adopt the medical expert s assessment that Plaintiff was capable of frequent fine manipulation. (Joint Stip. 23 n.6.) The Court declines the Agency s invitation to rewrite the ALJ s decision as it can only evaluate the decision for the reasons articulated by the ALJ. See Ceguerra v. Sec y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991). 8 1 reaching at or above shoulder height ). 2 Thus, the ALJ did not err here.4 IV. CONCLUSION 3 4 For these reasons, the Agency s decision is reversed and the 5 action is remanded to the Agency for further consideration consistent 6 with this Memorandum Opinion and Order.5 7 IT IS SO ORDERED. 8 DATED: October 18, 2011. 9 ________________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 S:\PJW\Cases-Soc Sec\ESTRADA, C 1843\Memo_Opinion.wpd 14 15 4 16 17 18 Plaintiff also complains that she is also precluded from performing these two jobs because she is unable to forcefully grasp or torque. This issue is better left to the ALJ. On remand, the vocational expert should explain whether a limitation on forceful grasping and torquing would limit the number of jobs Plaintiff could perform and why, or why not. 19 20 21 22 23 24 25 26 27 28 5 Plaintiff asks the Court to remand the case for an award of benefits. (Joint Stip. 25.) The Court recognizes it has the authority to do so, see McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989), but concludes that such relief is not warranted here. It is not clear from the record that Plaintiff is, in fact, disabled. As the Agency noted, the ALJ may have intended to adopt a less restrictive functional capacity for Plaintiff s manipulative limitations. In addition, as discussed above, the ultimate disability determination may depend on the limitations, if any, stemming from Plaintiff s alleged hearing impairment. Thus, further proceedings are necessary to resolve the outstanding issues in this case. See Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (holding remand for further proceedings was appropriate where the record contained additional unanswered questions regarding the applicant s eligibility for benefits). 9
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