Carolyn Martinez v. Michael J Astrue, No. 5:2011cv00539 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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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 CAROLYN MARTINEZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-00539-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on April 11, 2011, seeking review of 19 the denial of plaintiff s application for supplemental security income 20 ( SSI ). 21 § 636(c), to proceed before the undersigned United States Magistrate 22 Judge. The parties filed a Joint Stipulation on December 5, 2011, in 23 which: plaintiff seeks an order reversing the Commissioner s decision 24 and remanding this case for the payment of benefits or, alternatively, 25 for further administrative proceedings; and the Commissioner requests 26 that his decision be affirmed or, alternatively, remanded for further 27 administrative proceedings. 28 Stipulation under submission without oral argument. On May 2, 2011, the parties consented, pursuant to 28 U.S.C. The Court has taken the parties Joint 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On August 23, 2007, plaintiff filed an application for SSI. 4 (Administrative Record ( A.R. ) 9.) Plaintiff, who was born on May 1, 5 1965 (A.R. 17),1 claims to have been disabled since December 1, 2006 6 (A.R. 9), due to arthritis, back problems, depression, and vision 7 problems (A.R. 78, 86). 8 a jogger, material handler, tamale maker, and companion. Plaintiff has past relevant work experience as (A.R. 17.) 9 10 After the Commissioner denied plaintiff s claim initially and upon 11 reconsideration (A.R. 9, 78-82, 86-90), plaintiff requested a hearing 12 (A.R. 91). 13 counsel, appeared and testified at a video hearing before Administrative 14 Law Judge John R. Price (the ALJ ).2 15 Anthony Torres and vocational expert Stephen P. Davis also testified. 16 (Id.) 17 18), and the Appeals Council subsequently denied plaintiff s request for 18 review of the ALJ s decision (A.R. 1-3). 19 in this action. On January 22, 2010, plaintiff, who was represented by (A.R. 9, 19-71.) Lay witness On February 10, 2010, the ALJ denied plaintiff s claim (A.R. 9- That decision is now at issue 20 21 SUMMARY OF ADMINISTRATIVE DECISION 22 23 The ALJ found that plaintiff has not engaged in substantial gainful 24 25 26 27 28 1 On the date the application was filed, plaintiff was 42 years old, which is defined as a younger individual. (A.R. 17; citing 20 C.F.R. § 416.963.) 2 As noted in the ALJ s decision, plaintiff appeared in San Bernardino, California [for the video hearing], and [the ALJ] presided over the [video] hearing from San Francisco, California. (A.R. 9.) 2 1 activity since August 23, 2007, her application date. 2 ALJ determined that plaintiff has the following severe impairments: 3 right-eye blindness; bilateral early cataracts; moderate degenerative 4 disc disease of the cervical spine; obesity; major depression; and post- 5 traumatic 6 plaintiff does not have an impairment or a combination of impairments 7 that meets or medically equals one of the listed impairments in 20 8 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 9 416.925, 416.926). stress disorder. (Id.) The ALJ also (A.R. 11.) determined The that (A.R. 12.) 10 11 After reviewing the record, the ALJ determined that plaintiff has 12 the residual functional capacity ( RFC ) to perform light work, as 13 defined in 20 C.F.R. § 416.967(b), with the following exceptions: 14 15 [plaintiff] can lift and carry ten pounds frequently and 16 twenty pounds occasionally, walk and stand for six hours in an 17 eight-hour workday, and sit for six hours in an eight-hour 18 workday. 19 good visual acuity due to blindness in the right eye and the 20 associated lack of depth perception, no work around hazards 21 such as dangerous heights and machinery, and she can perform 22 simple, 23 interaction with the general public, occasional interaction 24 with co-workers, and little to no change in the work routine 25 from day to day. [Plaintiff] should not engage in work that requires repetitive one to two-step 26 27 (A.R. 14.) 28 3 job tasks with no 1 Based on his RFC assessment, the ALJ determined that plaintiff is 2 unable to perform her past relevant work. (A.R. 17.) However, having 3 considered plaintiff s age, education,3 work experience, and RFC, the ALJ 4 found that jobs exist in the national economy that plaintiff could 5 perform, including table worker and coater, brake linings.4 6 18.) 7 a disability, as defined in the Social Security Act, since August 23, 8 2007, the date her SSI application was filed. (A.R. 17- Accordingly, the ALJ concluded that plaintiff has not been under (A.R. 18.) 9 10 STANDARD OF REVIEW 11 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 13 decision to determine whether it is free from legal error and supported 14 by substantial evidence in the record as a whole. 15 F.3d 625, 630 (9th Cir. 2007). 16 evidence as a reasonable mind might accept as adequate to support a 17 conclusion. 18 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 19 20 3 21 22 The ALJ found that plaintiff has a limited education and is able to communicate in English. (A.R. 17.) 4 According to the Dictionary of Occupational Titles ( DOT ), a coater, brake linings 23 24 25 26 27 28 [t]ends machine that automatically coats inside of brake lining with adhesive preparatory to bonding lining to brake shoe[;] [s]tarts machine and conveyor and feeds brake lining into machine to obtain sample for approval by supervisor[;] [f]eeds brake linings into machine and observes coating for conformance to specifications as linings are discharged onto conveyer[; and] [p]laces linings with coating defects aside for disposal. DOT § 574.685-010. 4 1 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 2 record can constitute substantial evidence, only those reasonably drawn 3 from the record will suffice. 4 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 5 6 Although this Court cannot substitute its discretion for that of 7 the Commissioner, the Court nonetheless must review the record as a 8 whole, weighing both the evidence that supports and the evidence that 9 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of 10 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 12 responsible for determining credibility, resolving conflicts in medical 13 testimony, and for resolving ambiguities. 14 1035, 1039 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 15 16 The Court will uphold the Commissioner s decision when the evidence 17 is susceptible to more than one rational interpretation. 18 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 19 review only the reasons stated by the ALJ in his decision and may not 20 affirm the ALJ on a ground upon which he did not rely. 21 at 630; see also Connett, 340 F.3d at 874. 22 the Commissioner s decision if it is based on harmless error, which 23 exists only when it is clear from the record that an ALJ s error was 24 inconsequential to the ultimate nondisability determination. Robbins 25 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 26 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 27 at 679. 28 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 DISCUSSION 2 3 Plaintiff claims that the ALJ did not properly: (1) consider the 4 November 9, 2007 opinion of State agency physician Dr. H. M. Skopec 5 (Joint Stipulation ( Joint Stip. ) at 2-5); and (2) assess plaintiff s 6 ability to perform other work in the economy (Id. at 3, 7-9). 7 8 9 10 I. The Alleged Failure To Consider Properly The November 29, 2007 Opinion Of State Agency Physician H. M. Skopec, M.D. Does Not Warrant Remand. 11 12 It is the responsibility of the ALJ to analyze evidence and resolve 13 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 14 (9th Cir. 1989). 15 assessing a social security claim, [g]enerally, a treating physician s 16 opinion carries more weight than an examining physician s, and an 17 examining physician s opinion carries more weight than a reviewing 18 physician s. 19 2001); 20 C.F.R. § 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 20 21 In evaluating opinion evidence, an ALJ is required to consider the 22 opinions and findings of State agency medical consultants. 20 C.F.R. 23 § 416.927(f)(2)(I). 24 given controlling weight, the [ALJ] must explain in the decision the 25 weight given to the opinions of a State agency [consultant]. 20 C.F.R. 26 § 416.927(f)(2)(ii); see SSR 96-6p (1996), 1996 SSR LEXIS 3, at *5, 1996 27 WL 374180, at *2 (stating that an ALJ may not ignore the opinions of 28 State agency medical consultants and must explain the weight given to Further, [u]nless a treating source s opinion is 6 1 these opinions in their decision ). 2 3 In determining a claimant s RFC, an ALJ will consider all the 4 relevant evidence in the record. 20 C.F.R. § 416.945(a). In so doing, 5 the ALJ will consider all claimant s medically determinable impairments, 6 including those that are not severe. Id. 7 On 8 9 November 29, 2007, Dr. Skopec, a State agency medical consultant, completed a nonexamining, consultative review of plaintiff s 10 medical record. 11 Skopec completed a Psychiatric Review Technique form in which he opined 12 that plaintiff has: 13 living; (2) moderate difficulties in maintaining social functioning; (3) 14 moderate difficulties in maintaining concentration, persistence, or 15 pace; 16 duration. and (4) (A.R. 288.) no As part of his consultative review, Dr. (1) mild restrictions of activities of daily repeated episodes of decompensation of extended (A.R. 283.) 17 18 In addition, Dr. Skopec completed a Mental Functional Capacity 19 Assessment form also dated November 29, 2007 ( Assessment ). (A.R. 286- 20 88.) 21 Assessment, entitled Summary Conclusions, the evaluator is directed to 22 record summary conclusions derived from the evidence in file with 23 respect to the individual s capacity to sustain [each mental] activity 24 over a normal workday and workweek, on an ongoing basis. 25 The Assessment instructs the evaluator, however, to record a [d]etailed 26 explanation of the degree of limitation for each [of the four categories 27 of mental functioning], as well as any other assessment information 28 [he/she] deem[s] appropriate, . . . in Section III (Functional Capacity The Assessment consists of three sections. 7 In Section I of the (A.R. 286.) 1 Assessment). (Id.) 2 3 Section II of the Assessment, entitled Remarks, is to be 4 completed by the evaluator when there is insufficient documentation to 5 perform an accurate functional capacity assessment. 6 Assuming there are no such deficiencies, the evaluator completes Section 7 III of the Assessment, entitled Functional Capacity Assessment. 8 it, the evaluator explains his or her summary conclusions in narrative 9 form. (A.R. 288.) 10 Summary Conclusion 11 (A.R. 286-87.) In Section III is to be filled out only after the section has been completed. (Id.; emphasis omitted.) 12 13 As explained in the Social Security Program Operations Manual 14 System ( POMS ),5 [t]he purpose of [S]ection I ( Summary Conclusion ) 15 . . . is chiefly to have a worksheet to ensure that the [evaluator] has 16 considered each of these pertinent mental activities and the claimant s 17 . . . degree of limitation for sustaining these activities over a normal 18 workday and workweek on an ongoing, appropriate, and independent basis. 19 POMS DI 25020.010(B)(1). 20 the narrative written by the [evaluator] in [S]ection III ( Functional 21 Capacity Assessment ) that adjudicators are to use as the assessment of 22 RFC. 23 assessment in [S]ection III and decide what significance the elements 24 discussed in this RFC assessment have in terms of the [claimant] s 25 ability to meet the mental demands of past work or other work. (Id.) Significantly, the POMS notes that [i]t is Accordingly, the [a]judicators must take the RFC Id. 26 27 28 5 The Ninth Circuit has recognized that while the POMS does not have the force of law, it is persuasive authority. Warre v. Comm r of SSA, 439 F.3d 1001, 1005 (9th Cir. 2006). 8 1 (emphasis in original). 2 3 In the Sustained Concentration and Persistence portion of Section 4 I, Dr. Skopec found plaintiff to be Moderately Limited, inter alia,6 5 in her ability to perform activities within a schedule, maintain regular 6 attendance, and be punctual within customary tolerances. 7 After completing Section I and finding no deficiencies in Section II, 8 Dr. Skopec completed Section III of the Assessment. Dr. Skopec opined, 9 inter alia, that plaintiff can sustain simple repetitive tasks with 10 adequate pace and persistence, can adapt and relate to co-workers and 11 supervisors but likely cannot work with the public. (A.R. 286.) (A.R. 288.) 12 13 Contrary to plaintiff s contention, the ALJ committed no reversible 14 error in failing to refer specifically to Dr. Skopec s finding that 15 plaintiff is moderately limited in her ability to perform activities 16 within a schedule, maintain regular attendance, and be punctual within 17 customary tolerances. 18 not refer to the above noted limitations does not mean the ALJ failed to 19 consider such evidence. 20 1998)(noting that [a]n ALJ's failure to cite specific evidence does not 21 indicate that such evidence was not considered ). 22 decision, 23 Assessment and gave it [s]ome weight. 24 in assessing whether plaintiff's impairments met or equaled one of the 25 listed the ALJ impairments, As an initial matter, the fact that the ALJ did See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. twice the referred ALJ noted to Dr. In fact, in his Skopec s November 2007 (A.R. 12-13, 16.) For example, that Dr. Skopec opined that 26 27 28 6 Dr. Skopec found plaintiff to be Moderately Limited in other mental activities; however, plaintiff has not claimed that the ALJ committed any error in considering these mental limitations. 9 1 [plaintiff] had mild restriction of activities of daily living, moderate 2 difficulties in maintaining social functioning, moderate difficulties in 3 maintaining concentration, persistence, or pace, and no episodes of 4 decompensation. 5 mental RFC assessment for plaintiff in which Dr. Skopec opined that 6 plaintiff could sustain simple repetitive tasks with adequate pace and 7 persistence, and could adapt and relate[] to co-workers and supervisors 8 but that she likely could not work with the public. (A.R. 12-13.) The ALJ also referred to Dr. Skopec's (A.R. 16.) 9 Further, the ALJ properly accounted for Dr. Skopec's above noted 10 11 moderate limitations in Section 12 agree[ing] with, inter alia, Dr. Skopec's mental RFC for plaintiff 13 contained in Section III and finding that plaintiff can perform simple, 14 repetitive one to two-step job tasks with no interaction with the 15 general public. 16 instructs that Section III, as opposed to Section I, of the Assessment 17 is to be used by the ALJ in assessing plaintiff's RFC. 18 properly relied upon Dr. Skopec's Section III narrative interpretation 19 of his Section I summary conclusions. (A.R. 16.) I ( Summary Conclusions ) by As noted supra, the POMS specifically As such, the ALJ 20 21 22 Accordingly, for the aforementioned reasons, the ALJ committed no reversible error in considering the opinion of Dr. Skopec. 23 24 25 II. Remand Is Necessary So That The ALJ Can Properly Determine What Work, If Any, Plaintiff Can Perform. 26 27 28 Plaintiff claims that the ALJ committed several errors, as discussed in detail infra, in determining that plaintiff has the ability 10 1 to perform work other than her past relevant work. 2 3 At step five of the sequential evaluation, the burden shifts from 4 the claimant to the ALJ to prove that, based on the claimant s RFC, age, 5 education, and past work experience, the claimant is able to perform 6 work that exists in significant numbers in the national economy. Smolen 7 v. 8 416.920(a)(4)(v), 416.960(c), 416.964. 9 step five by either taking the testimony of a vocational expert or by Chater, 80 F.3d 1273, 1291 (9th Cir. 1996); 20 C.F.R. §§ The ALJ can meet his burden at 10 referring to the Grids. 11 1114-15 (9th Cir. 2006); see also Tackett v. Apfel, 180 F.3d 1094, 1101 12 (9th Cir. 1999)(describing how the vocational expert s testimony and the 13 Grids are used at step five). 14 rely upon the testimony of a vocational expert, the hypothetical posed 15 to the vocational expert must be accurate, detailed, and supported by 16 the medical record. 17 vocational expert does not reflect all of the claimant s limitations 18 and/or is not supported by evidence in the record, the [vocational] 19 expert s testimony has no evidentiary value to support a finding that 20 the claimant can perform jobs in the national economy. 21 Shalala, 22 quotations omitted); Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 23 1988); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 10 F.3d 678, See Lounsburry v. Barnhart, 468 F.3d 1111, Id. 681 If the ALJ chooses, as in this case, to If the hypothetical presented to the (9th Cir. 1993)(citation Matthews v. and internal 24 25 The ALJ has an affirmative responsibility to ask whether a conflict 26 exists between the testimony of a vocational expert and the DOT. 27 00-4p, 2000 SSR LEXIS 8, at *9, 2000 WL 1898704, at *4; Massachi v. 28 Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). 11 SSR If there is a conflict 1 between the DOT and testimony from the vocational expert, an ALJ may 2 accept testimony from a vocational expert that contradicts the DOT, but 3 the 4 deviation. 5 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). 6 conflict by determining whether the vocational expert s explanation is 7 reasonable and provides sufficient support to justify deviating from the 8 DOT. 9 Massachi, 486 F.3d at 1153. record must contain persuasive evidence to support the Pinto v. Massanari, 249 F.3d 840, 846 (quoting Johnson v. The ALJ must resolve any SSR 00-4p, 2000 SSR LEXIS 8, at *9, 2000 WL 1898704, at *4; An ALJ s failure to do so, however, can be 10 harmless error when there is no conflict or the vocational expert 11 provides a basis for relying on his or her testimony rather than on the 12 DOT. Id. at 1154 n.19. 13 1. 14 Dr. Andrea S. Ching s Opinion 15 16 Plaintiff claims that the ALJ erred at step five in failing to 17 include in his assessment of plaintiff s RFC the finding by Dr. Ching 18 that plaintiff had poor fix [and] follow [and] loses fixation in the 19 [illegible] gaze / r[igh]t gaze (A.R. 273) -- the inclusion of which 20 may have affected the ALJ s determination that plaintiff can perform 21 other work (Joint Stip. at 7). 22 On 23 November 15, 2007, Dr. an opthamologist, examined 24 plaintiff. 25 Dr. Ching detailed the results of her examination of plaintiff. 26 Ching stated that plaintiff s: (1) visual acuity with no correction is 27 hand 28 [c]onfrontational visual fields are restricted on the right eye ; (3) motion (A.R. 273, 397-98.) Ching, on the right eye In a letter dated November 16, 2007, and 12 20/40 on the left eye ; Dr. (2) 1 cornea of the right eye shows an epithelial[,] anterior stromal scar[, 2 and] corneal haze ; and (4) lenses show early cataracts bilaterally. 3 (A.R. 397.) 4 plaintiff has: 5 history of a corneal ulcer ; (2) [d]ry eye syndrome ; (3) [e]arly 6 cataracts [in] both eyes ; and (4) a [h]istory of amblyopia [in her] 7 right eye. Based on these examination findings, Dr. Ching opined that (1) a [c]orneal scar of the right eye with a possible (Id.) 8 9 Contrary to error plaintiff s by not contention, including Dr. the ALJ Ching s did not findings commit 10 reversible regarding 11 plaintiff s ability to fixate and follow in his RFC assessment of 12 plaintiff. As an initial matter, the ALJ discussed Dr. Ching opinion in 13 his decision. 14 plaintiff to have visual acuity with no correction of hand motion in 15 the right eye and 20/40 in the left eye. 16 noted Dr. Ching s opinion that plaintiff has [a] corneal scar of the 17 right eye with a possible history of a corneal ulcer, dry eye syndrome, 18 early cataracts in both eyes, and a history of amblyopia in the right 19 eye. The ALJ noted, for example, that Dr. Ching found (A.R. 16.) The ALJ also (Id.) 20 21 Further, while it is true that the ALJ did not refer specifically 22 to Dr. Ching s finding regarding plaintiff s fixation and follow, the 23 ALJ clearly recognized plaintiff s visual problems in her right eye as 24 evidenced by his finding that plaintiff should not engage in work that 25 requires good visual acuity due to blindness in the right eye and the 26 associated lack of depth perception. 27 as the Commissioner properly notes, by finding plaintiff to be blind in 28 her right eye -- a finding which exceeds the limitations found by Dr. 13 (Id.; emphasis added.) Indeed, 1 Ching, the ALJ gave plaintiff every benefit of the doubt. 2 3 4 Accordingly, the ALJ committed no reversible error in considering the opinion of Dr. Ching. 5 6 2. Visual Acuity 7 8 Plaintiff claims that the ALJ erred at step five in finding that 9 she could perform the jobs of table worker and coater, because such jobs 10 would require plaintiff to have near visual acuity, and the ALJ s 11 assessment of plaintiff's RFC is ambiguous as to whether [plaintiff] s 12 visual acuity is near[, as opposed to far,] visual acuity. 13 Stip. at 8.) (Joint 14 15 At the January 22, 2010 administrative hearing, the ALJ asked the 16 vocational expert whether a hypothetical individual who was limited, as 17 is plaintiff, to, inter alia, no work that requires good visual acuity 18 due to blindness in the right [eye], could perform plaintiff s past 19 relevant work. 20 vocational expert asked the ALJ to clarify what he meant by visual 21 acuity. 22 the visual fields and so both considering that and probably depth 23 perception as well. 24 stated that he thought that plaintiff s depth perception would be 25 affected. 26 plaintiff could see effectively an object at 20 inches or less. 27 The ALJ responded that [w]ith the left eye [plaintiff] has adequate 28 vision to do that. Id. Id. (A.R. 64.) Before answering the ALJ s question, the The ALJ stated that [t]he record shows limitations in (A.R. 65.) In response, the vocational expert The vocational expert then asked the ALJ whether Id. Id. The vocational expert then asked whether 14 1 plaintiff could read newspapers at 20 inches or less. Id. The ALJ 2 responded that he did not have any evidence that shows otherwise. Id. 3 4 Taking into account the ALJ s responses to his questions, the 5 vocational expert stated [o]kay so it s really [a] depth perception 6 [issue] we re talking about. 7 understanding of plaintiff s visual problems, the vocational expert 8 testified that plaintiff could perform other jobs in the national 9 economy, including the jobs of table worker and coater. (A.R. 65.) Accordingly, based upon his (A.R. 66.) The 10 vocational expert further testified that his testimony was consistent 11 with the DOT. (A.R. 67.) 12 13 In his assessment of plaintiff s RFC, the ALJ found that plaintiff 14 should not engage in work that requires good visual acuity due to 15 blindness in the right eye and the associated lack of depth perception. 16 (A.R. 14.) 17 alia, plaintiff s RFC assessment and the vocational expert s testimony, 18 that plaintiff could perform other jobs that exist in significant number 19 in the national economy, including table worker and coater. 20 18.) The ALJ further found, based on his consideration of, inter (A.R. 17- 21 22 While it is true, as plaintiff claims, that the ALJ did not specify 23 in his RFC assessment whether plaintiff has near and/or far visual 24 acuity problems, any error committed by the ALJ in failing to do so was 25 harmless. 26 testimony that plaintiff s visual acuity problem was really a depth 27 perception problem due to blindness in her right eye. 28 Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008)(noting that an ALJ may rely First, the ALJ properly relied upon the vocational expert s 15 Tommasetti v. 1 on expert testimony which contradicts the DOT [so long as] the record 2 contains 3 omitted); see Massachi, 486 F.3d at 1154 n.19 (noting that there is no 4 reversible error if there was no conflict or the vocational expert 5 provided sufficient support for her conclusions so as to justify any 6 conflicts ). 7 depth perception requirement, any error committed by the ALJ was 8 harmless. persuasive evidence to support the deviation )(citations As neither the table worker job nor the coater job has a 9 10 Second, plaintiff does not allege, and the Court cannot find, that 11 plaintiff has any near visual acuity problems in her left eye. In fact, 12 as the Commissioner properly notes, Dr. Ching found that plaintiff s 13 vision in her left eye, without any corrective lens, is 20/40 (A.R. 14 397), and plaintiff testified that she can read with her left eye when 15 she wears glasses (A.R. 50). 16 vocational expert s questions regarding plaintiff s visual acuity, the 17 ALJ stated that plaintiff could see an object at 20 inches or less and 18 that there was no evidence to show that plaintiff could not read a 19 newspaper at a distance of 20 inches or less. 20 objections were made in response to the ALJ s statements. 21 in view of the fact that plaintiff neither alleges nor appears to have 22 any near visual acuity problems in her left eye that cannot be corrected 23 with prescription lens, any error committed by the ALJ with respect to 24 plaintiff s visual acuity was harmless.7 In addition, in responding to the Significantly, no Accordingly, 25 26 27 28 7 As this case is being remanded for the reason discussed infra, the ALJ should, in an abundance of caution, specify in his RFC assessment and subsequent question(s) to the vocational expert plaintiff s exact visual acuity problems, and/or lack thereof, with respect to her right and left eyes. 16 1 3. Reasoning Level 2 And One- To Two-Step Job Tasks 2 3 Plaintiff claims that the ALJ erred at step five in finding that 4 plaintiff could perform the jobs of table worker and coater, because, 5 according to the DOT, such jobs would require plaintiff to function at 6 reasoning level 2 -- a reasoning level which plaintiff contends is 7 inconsistent with the ALJ's RFC assessment limiting plaintiff to simple, 8 repetitive one- to two-step job tasks. 9 10 The DOT job descriptions include a General Educational 11 Development ( GED ) definition component which embraces those aspects 12 of education (formal) and (informal) which are required of the worker 13 for satisfactory job performance. 14 5465, 2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010). 15 comprised 16 Development. 17 Level 1 (low) to Level 6 (high). 18 follows: of three Id. scales, Grisby v. Astrue, U.S. Dist. LEXIS including a scale for The GED is Reasoning The GED reasoning development scale ranges from Id. Levels 1 and 2 are defined as 19 20 LEVEL 1 21 22 Apply commonsense understanding to carry out simple one- 23 or two-step instructions. 24 with occasional or no variables in or from these situations 25 encountered on the job. 26 /// 27 /// 28 Deal with standardized situations /// 17 1 LEVEL 2 2 3 Apply commonsense understanding to carry out detailed but 4 uninvolved written or oral instructions. Deal with problems 5 involving a few concrete variables in or from standardized 6 situations. 7 8 DOT, Appendix C, 1991 WL 688702 (1991). 9 10 Based on the vocational expert's testimony at the January 22, 2010 11 administrative hearing, the ALJ determined that plaintiff could perform 12 the occupations of table worker and coater, both of which require a 13 reasoning level of 2 according to the DOT. (A.R. 17-18; DOT § 739.687- 14 182 [coater, 15 However, although the ALJ relied upon the vocational expert s statement 16 that his testimony was consistent with the DOT, there appears to be an 17 inconsistency between the ALJ's RFC assessment, which limits plaintiff 18 to simple, repetitive one- to two-step job tasks, and his finding that 19 plaintiff can perform jobs which, according to the DOT, require a 20 reasoning level of 2. [table worker]; DOT § 574.685-010 brake linings].) 21 22 As relevant here, while the weight of prevailing authority 23 precludes a finding of any inconsistency between a reasoning level of 24 two and a mere limitation to simple, repetitive tasks or unskilled 25 work, Coleman v. Astrue, 2011 U.S. Dist LEXIS 19892, at *12-*14 (C.D. 26 Cal. Feb. 28, 2011)(citing cases in which the courts have rejected the 27 argument that a limitation to simple, repetitive tasks is inconsistent 28 with level two reasoning level), the same cannot be said when the ALJ 18 1 includes an additional restriction to one- to two-step job tasks, see 2 Cardozo v. Astrue, 2011 U.S. Dist. LEXIS 33821 (C.D. Cal. Mar. 29, 3 2011)(citing cases in which courts found a limitations to one- or two- 4 step instructions to be consistent with reasoning level 1 jobs). 5 is because the additional language used by the ALJ - to wit, limiting 6 plaintiff to one- to two-step job tasks -- parallels the language 7 contained in the description of reasoning level 1, as opposed to that 8 contained in reasoning level 2. 9 33821, at *14. That See Coleman, 2011 U.S. Dist LEXIS 10 11 Accordingly, because a potential conflict exists between the ALJ s 12 determination that plaintiff can perform one- to two-step job tasks and 13 his finding that plaintiff can perform jobs which, according to the DOT, 14 require level 2 reasoning -- a conflict which the vocational expert 15 neither identified nor explained -- the Court cannot determine whether 16 substantial evidence supports the ALJ s ultimate determination that 17 plaintiff can perform other work that exists in significant numbers in 18 the national economy. Remand, therefore, is appropriate. 19 20 4. Dangerous Machinery 21 22 Plaintiff claims that the ALJ erred at step five in finding that 23 she could perform the job of table worker, because it would require 24 plaintiff 25 plaintiff's 26 machinery. to work RFC with allegedly machinery, precludes and the plaintiff ALJ's from assessment working of around (Joint Stip. at 8.) 27 28 In his assessment of plaintiff s RFC, the ALJ limited plaintiff to 19 1 inter alia, no work around hazards such as dangerous heights and 2 machinery. 3 claim of error is whether the adjective dangerous modifies the word 4 machinery. 5 2010 administrative hearing, the ALJ asked the vocational expert whether 6 a hypothetical individual with plaintiff s limitations and restrictions, 7 including, inter alia, a preclusion from working around hazards such as 8 heights 9 relevant work. and (A.R. 14.) Critical to the resolution of this alleged As the Commissioner properly notes, at the January 22, dangerous machinery, could (A.R. 64; emphasis added.) perform plaintiff s past At first blush, it would 10 appear that the ALJ intended the adjective dangerous to modify the 11 word machinery. 12 expert, the ALJ asked the vocational expert whether a hypothetical 13 individual who was limited to, inter alia, no work around hazards such 14 as heights and machinery, could perform other work in the national 15 economy. 16 mention of the word dangerous. 17 question as to whether the ALJ intended to preclude plaintiff from 18 working around dangerous machinery or machinery in general. However, in a later hypothetical to the vocational (A.R. 66.) In this hypothetical question, the ALJ made no As such, there appears to be some 19 20 Accordingly, as the Court has already found remand appropriate to 21 remedy the error described supra, the ALJ shall, on remand, ensure that 22 he 23 hypothetical questions to the vocational expert whether plaintiff is 24 precluded from dangerous machinery or, rather, machinery in general. specifies in both his assessment of plaintiff s RFC and his 25 26 III. Remand Is Required. 27 28 The decision whether to remand for further proceedings or order an 20 1 immediate award of benefits is within the district court s discretion. 2 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 3 useful purpose would be served by further administrative proceedings, or 4 where the record has been fully developed, it is appropriate to exercise 5 this discretion to direct an immediate award of benefits. 6 ( [T]he decision of whether to remand for further proceedings turns upon 7 the likely utility of such proceedings. ). 8 outstanding issues that must be resolved before a determination of 9 disability can be made, and it is not clear from the record that the ALJ 10 would be required to find the claimant disabled if all the evidence were 11 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 12 13 Remand is the appropriate remedy to allow the ALJ the opportunity 14 to remedy the above-mentioned deficiencies and errors. 15 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 16 further proceedings is appropriate if enhancement of the record would be 17 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 18 (remand appropriate to remedy defects in the record). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 21 See, e.g., 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: February 22, 2012 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 22
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