Sherri Lynn Barton v. Michael J. Astrue, No. 5:2012cv01013 - Document 14 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman.For the reasons stated above, the decision of the Social SecurityCommissioner is REVERSED and REMANDED for further proceedings consistentwith this opinion. (twdb)
Download PDF
<![CDATA[
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 SHERRI LYNN BARTON, Plaintiff, 10 v. 11 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-1013-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Sherri Barton seeks judicial review of the Commissioner s 18 final decision denying her applications for disability insurance ( DIB ) 19 and Supplemental Security Income ( SSI ) benefits. For the reasons 20 stated below, the decision of the Commissioner is REVERSED and the 21 matter REMANDED for further proceedings consistent with this opinion. 22 23 I. Background 24 Plaintiff was born on December 1, 1962, and was 44 years old at the 25 time she filed her applications for benefits. (Administrative Record 26 ( AR ) at 224-35.) She has a high school education and has relevant work 27 experience as a house cleaner and title clerk. (AR at 253, 256.) 28 Plaintiff filed her benefits applications on May 22, 2006, alleging 1 1 disability beginning December 2 1, 2005, due to fibromyalgia and depression. (AR at 21, 123.) 3 Plaintiff s applications were denied initially on November 2, 2006 4 and upon reconsideration on March 2, 2007 (AR at 139-43, 149-53.) An 5 administrative 6 Administrative Law Judge ( ALJ ) Thomas J. Gaye. On September 26, 2008, 7 the ALJ issued an unfavorable decision. (AR at 124-33.) The Appeals 8 Council remanded the case for rehearing on May 5, 2010. (AR at 134-38.) 9 On March 8, 2011, ALJ Sharilyn Hopson held a second administrative 10 hearing, at which Plaintiff testified, as did two medical experts and a 11 vocational expert ( VE ). (AR at 33-87.) On April 7, 2011, ALJ Hopson 12 issued an unfavorable decision. (AR at 16-27.) She found that the 13 medical evidence established that Plaintiff suffered from the following 14 severe impairments: fibromyalgia that includes overactive bowel and 15 irritable bowel syndromes, major depressive disorder, panic disorder 16 without agoraphobia and she is overweight to obese. (AR at 27.) The ALJ 17 determined that Plaintiff s impairments did not meet, or were not 18 medically equal to, one of the listed impairments in 20 C.F.R., Part 19 404, Subpart P, Appendix 1. (Id.) The ALJ further found that Plaintiff 20 retained the residual functional capacity ( RFC ) to perform a range of 21 light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) with the 22 following exceptions: hearing was held on August 13, 2008, before 23 The claimant is able to stand/walk 6 hours in an 8 hour 24 workday with normal breaks such as every 2 hours and sit 6 25 hours in an 8 hour workday with normal breaks such as every 2 26 hours. She can lift/carry 10 pounds frequently, 20 pounds 27 occasionally and occasionally stoop and bend. She can climb 28 stairs but she cannot climb ladders, work at heights or 2 1 balance. She should have ready access to restroom facilities. 2 She is limited to simple repetitive tasks with no public 3 interaction and only non intense contact with coworkers and 4 supervisors. No hypervigilance, fast paced work and she cannot 5 be responsible for the safety of others. 6 (AR 7 performing her past relevant work as a house cleaner and was therefore 8 not disabled within the meaning of the Social Security Act. See 20 9 C.F.R. § 416.920(f). (AR at 27.) at 22-23.) The ALJ concluded that Plaintiff was capable of 10 On May 16, 2012, the Appeals Council denied review. (AR at 1-4.) 11 Plaintiff then timely commenced this action for judicial review. On 12 October 29, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 13 of disputed facts and issues. Plaintiff contends that the ALJ erred by: 14 (1) failing to properly consider, at Step Four of the sequential 15 evaluation, whether Plaintiff was capable of performing her past work as 16 a house cleaner as generally performed; (2) failing to properly consider 17 the opinion of Plaintiff s treating physician; and (3) relying upon the 18 opinion of the testifying medical expert. (Joint Stip. at 3.) Plaintiff 19 seeks reversal of the Commissioner s denial of her applications and 20 payment 21 administrative hearing. (Joint Stip. at 29.) The Commissioner requests 22 that the ALJ s decision be affirmed. (Joint Stip. at 30.) of benefits or, in the alternative, remand for a new 23 After reviewing the parties respective contentions and the record 24 as a whole, the Court concludes that the ALJ erred in finding, at Step 25 Four of the sequential evaluation, that Plaintiff could perform the job 26 of housekeeper. Accordingly, the matter shall be remanded for further 27 proceedings consistent with this opinion.1 28 1 The Court does not reach the remaining claims of error and will not decide whether these issues would independently warrant relief. The ALJ may wish to consider these other claims of error upon remand. 3 1 2 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 4 decision must be upheld unless the ALJ s findings are based on legal 5 error or are not supported by substantial evidence in the record as a 6 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 7 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 8 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 9 such evidence as a reasonable person might accept as adequate to support 10 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 11 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 12 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 13 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 14 evidence supports a finding, the reviewing court must review the 15 administrative record as a whole, weighing both the evidence that 16 supports 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 18 the evidence can support either affirming or reversing the ALJ s 19 conclusion, the reviewing court may not substitute its judgment for 20 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 21 22 23 III. Discussion Plaintiff contends evaluation that because the ALJ she erred Step that Four of Plaintiff the 24 sequential 25 perform her past relevant work as generally performed. (Joint Stip. at 26 3.) As part of her RFC determination, the ALJ concluded that Plaintiff 27 was limited to no public interaction and only non intense contact with 28 coworkers and supervisors. (AR at 22-23.) When asked to identify any 4 determined at could 1 possible jobs that Plaintiff could perform in view of her RFC, the VE 2 testified that Plaintiff could perform her past job of cleaner, 3 housekeeping (Dictionary of Occupational Titles ( DOT ) 323.687-014), 4 as generally performed. (AR at 27, 83.) Plaintiff argues that the ALJ s 5 determination was erroneous because the functional limitation against 6 having any contact with the public contradicts the DOT s description of 7 the job of cleaner, housekeeping as including render[ing] personal 8 assistance to patrons. (Id.) (Joint Stip. at 3.) 9 Although evidence provided by a VE is generally expected to be 10 consistent with the DOT, [n]either the DOT nor the VE . . . evidence 11 automatically trumps when there is a conflict. Social Security Ruling 12 ( SSR ) 00-4p; Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). 13 Rather, 14 classification, and [a]n ALJ may rely on expert testimony which 15 contradicts the DOT, but only insofar as the record contains persuasive 16 evidence to support the deviation. Johnson v. Shalala, 60 F.3d 1428, 17 1435 (9th Cir. 1995); Massachi, 486 F.3d at 1153 (when a conflict 18 between a VE s testimony and the DOT arises, the ALJ must make an 19 inquiry with the VE and then determine whether the VE s explanation for 20 the conflict is reasonable and whether a basis exists for relying on the 21 expert rather than the [DOT] ). the DOT raises a rebuttable presumption as to a job 22 Here, neither the VE nor the ALJ attempted to explain or justify 23 the apparent discrepancy between the RFC s lim\itation to no public 24 interaction with the DOT s description of the job as requiring providing 25 personal assistance to patrons. It is unclear from Plaintiff s testimony 26 whether she was providing housekeeping services solely to individual 27 home 28 supervisors, thus avoiding any contact with the general public. owners, who perhaps could be 5 considered to be Plaintiff s 1 Alternatively, Plaintiff may have been working for a house cleaning 2 service or for a hotel or other commercial establishment, in which case 3 she was required to interact with the general public. Because the ALJ 4 did not clarify the apparent discrepancy, the VE s testimony could not 5 serve 6 determination. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 7 2008) (ALJ erred in finding that the claimant could return to past 8 relevant work based on the VE s testimony that deviated from the DOT 9 because the ALJ did not identify what aspect of the VE s experience 10 warranted deviation from the DOT, and did not point to any evidence in 11 the record other than the VE s testimony ... ); Pardue v. Astrue, 2011 12 WL 5520301 13 between DOT description of job of cleaner and ALJ s finding that 14 claimant should not have contact with public). as substantial evidence supporting the ALJ s Step Four at *5 (C.D. Cal. Nov. 14, 2011)(finding inconsistency 15 16 IV. Conclusion 17 For the reasons stated above, the decision of the Social Security 18 Commissioner is REVERSED and REMANDED for further proceedings consistent 19 with this opinion. 20 21 DATED: November 8, 2012 22 23 24 ______________________________ Marc L. Goldman United States Magistrate Judge 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
