Shelly Long v. Michael J Astrue, No. 5:2012cv00270 - Document 15 (C.D. Cal. 2012)
Court Description: ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Robert N. Block, re Joint Stipulation for Social Security Cases 14 . (twdb)
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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 SHELLY LONG, ) ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, Commissioner of Social Security, ) ) ) Defendant. Case No. EDCV 12-270 RNB ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS The Court now rules as follows with respect to the one disputed issue listed in 18 the Joint Stipulation, which is directed to the determination of the Administrative 19 Law Judge ( ALJ ) that plaintiff was able to return to her past relevant work, based 20 on the testimony of the vocational expert ( VE ) that a person with plaintiff s residual 21 functional capacity ( RFC ) was able to perform the job of fast food worker.1 22 The Ninth Circuit has held that, before an ALJ concludes that a claimant is able 23 24 1 As the Court advised the parties in its Case Management Order, the 25 decision in this case is being made on the basis of the pleadings, the Administrative 26 Record ( AR ), and the Joint Stipulation ( Jt Stip ) filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has 27 determined which party is entitled to judgment under the standards set forth in 42 28 U.S.C. § 405(g). 1 1 to return to past relevant work, the ALJ must make specific findings as to the 2 claimant s residual functional capacity, the physical and mental demands of the past 3 relevant work, and the relation of the residual functional capacity to the past work. 4 See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2011) (citing Social Security 5 Ruling ( SSR ) 82-62). With respect to the physical and mental demands of past 6 relevant work as it is generally performed in the national economy, the best source 7 of information is usually the Dictionary of Occupational Titles ( DOT ). See Pinto, 8 249 F.3d at 845; see also Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); 20 9 C.F.R. § 416.966(d). Moreover, [i]n order for an ALJ to accept vocational expert 10 testimony that contradicts the Dictionary of Occupational Titles, the record must 11 contain persuasive evidence to support the deviation. See Pinto, 249 F.3d at 846 12 (quoting Johnson, 60 F.3d at 1435). 13 Here, plaintiff claims that the VE s testimony contradicts the demands set out 14 in the relevant DOT description (DOT No. 311.472-010: Fast-Foods Worker) in two 15 respects. (See Jt Stip at 3-5.) First, plaintiff notes that, while her RFC (as assessed 16 by the ALJ) limits her to frequent reaching and handling, the job of Fast-Foods 17 Worker as described in DOT No. 311.472-010 requires constant reaching and 18 handling. (See Jt Stip at 4-5.) An activity is frequent if it exists one-third to two19 thirds of the time, and it is constant if it exists two-thirds or more of the time. See 20 DOT No. 311.472-010; see also Selected Characteristics of Occupations Defined in 21 the Revised Dictionary of Occupational Titles, Appendix C. The Court agrees that 22 this constitutes a contradiction between the VE s testimony and the DOT. See 23 generally Hulsey v. Astrue, 622 F.3d 917, 924 (8th Cir. 2010) (difference between 24 constant and frequent activity was dispositive of whether plaintiff s restriction 25 was consistent with VE testimony).2 Moreover, the record does not contain any 26 27 28 2 The Commissioner disagrees that there was a contradiction between the (continued...) 2 1 evidence, much less persuasive evidence, to support the deviation. See Pinto, 249 2 F.3d at 846. 3 Second, plaintiff contends that her RFC limitation to no repetitive movement 4 involving partial or 75% of her range of motion of the head/neck is inconsistent with 5 the Fast-Foods Worker job requirement of repetitive head/neck movements in work 6 activities such as handling foods from shelves, trays, and takeout bags. (See Jt Stip 7 at 5.) Although the DOT does not expressly state whether it is possible to perform 8 the job of Fast-Foods Worker with a limitation in moving one s head/neck, the Court 9 finds that the various activities listed in the job description suggested a potential 10 inconsistency with the VE s testimony that warranted further inquiry. See Cooley v. 11 Astrue, 2011 WL 2554222, at *5 (C.D. Cal. June 27, 2011) ( [B]ecause the DOT is 12 silent with respect to neck motion limitations limitations which the ALJ found 13 plaintiff to have and there could be a potential inconsistency between the vocational 14 expert s testimony and the DOT, further inquiry on remand may be appropriate. ); see 15 generally Valenzuela v. Astrue, 2009 WL 1537876, at *3 (N.D. Cal. June 2, 2009) 16 (explaining that the DOT s silence with respect to a particular limitation does not 17 eliminate possibility of conflict between VE s testimony and DOT but could still 18 suggest a potential inconsistency sufficient to warrant inquiry) (citing Massachi v. 19 Astrue, 486 F.3d 1149, 1151 (9th Cir. 2007)). 20 21 2 (...continued) 22 VE s testimony and the DOT based on Hernandez v. Astrue, 2012 WL 4840692, at 23 *1 (C.D. Cal. Sept. 4, 2012), in which the court affirmed the ALJ s denial of benefits 24 after observing that the difference between frequent and constant is not that great. (See Jt Stip at 7-8.) However, in Hernandez, the court found dispositive the 25 fact that the claimant was not limited entirely to frequent handling and reaching, but 26 could perform continuous reaching and handling (i.e., even more than constant reaching and handling) with one of his hands. By way of contrast, plaintiff is limited 27 to frequent handling and reaching with both of her hands, so the reasoning of 28 Hernandez does not apply here. 3 1 Finally, the Court will address the Commissioner s contention that, even if 2 there was a conflict between the VE s testimony and the DOT that might support an 3 inference that plaintiff was unable to return to her past relevant work as generally 4 performed, such conflict does not call into question the ALJ s determination that 5 plaintiff was able to return to her past relevant work as actually performed. (See 6 Jt Stip at 8; see also AR 18.) 7 The determination of whether a claimant is capable of performing past relevant 8 work properly may be based on either the past relevant work as performed by the 9 claimant or the past relevant work as generally performed in the national economy. 10 See, e.g., Pinto, 249 F.3d at 845 ( We have never required explicit findings . . . 11 regarding a claimant s past relevant work both as generally performed and as actually 12 performed. ) (emphasis in original); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 13 1993); Sanchez v. Secretary of Health and Human Svs., 812 F.2d 509, 511 (9th Cir. 14 1987). Moreover, the Commissioner is correct that the burden of proof lies with the 15 claimant [to demonstrate that she can no longer perform her past relevant work]. 16 See Pinto, 249 F.3d at 844. However, the ALJ still has a duty to make the requisite 17 factual findings to support his conclusion. See id. This includes a duty to 18 adequately document the physical and mental demands of a claimant s past relevant 19 work as actually performed. See SSR 82-62 at *3 ( Adequate documentation of past 20 work includes factual information about those work demands which have a bearing 21 on the medically established limitations. Detailed information about strength, 22 endurance, manipulative ability, mental demands and other job requirements must be 23 obtained as appropriate. ). Sources of information about the requirements of past 24 relevant work as actually performed may include a properly completed vocational 25 report and plaintiff s own testimony. See Pinto, 249 F.3d at 845-46; SSR 82-61 at *2; 26 SSR 82-41 at *4. In this case, the ALJ failed to adequately document, through either 27 a properly completed vocational report or plaintiff s own testimony, the physical and 28 mental demands of plaintiff s past relevant work as actually performed. Accordingly, 4 1 the Court finds that substantial evidence does not support the ALJ s determination 2 that plaintiff was able to return to her past relevant work as actually performed. 3 4 5 CONCLUSION AND ORDER The law is well established that the decision whether to remand for further 6 proceedings or simply to award benefits is within the discretion of the Court. See, 7 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at 8 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted 9 where additional administrative proceedings could remedy defects in the decision. 10 See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 11 635. Remand for the payment of benefits is appropriate where no useful purpose 12 would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 13 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 14 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily 15 delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 16 The Court has concluded that this is not an instance where no useful purpose 17 would be served by further administrative proceedings; rather, additional 18 administrative proceedings still could remedy the defects in the ALJ s decision. 19 Accordingly, IT IS HEREBY ORDERED that, pursuant to sentence four of 42 20 U.S.C. § 405(g), Judgment be entered reversing the decision of the Commissioner of 21 Social Security and remanding this matter for further administrative proceedings.3 22 23 DATED: November 8, 2012 24 25 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 26 27 28 3 It is not the Court s intent to limit the scope of the remand. 5
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