Diane Patton v. Michael J Astrue, No. 5:2012cv02091 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is reversed, and this case is remanded to the Commissioner for further administrative proceedings consistent with this memorandum of decision. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 DIANE PATTON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. EDCV 12-02091 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Acting Commissioner of 19 the Social Security Administration (the Commissioner ), denying plaintiff s application for disability 20 insurance benefits and supplemental security income ( SSI ) benefits. The parties have filed a Joint 21 Stipulation ( JS ) setting forth their contentions with respect to each disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural history. [See JS 2]. Plaintiff, who is now 55 years old, 24 alleges that she has been disabled since June 1, 2006. [Administrative Record ( AR ) 20]. In an August 5, 25 2011 written hearing decision that constitutes the final decision of the Commissioner, an administrative law 26 judge ( ALJ ) found that plaintiff was not disabled during the period from January 2008 through December 27 2009 because she worked at the substantial gainful activity (SGA ) level during that period. [AR 22-23]. 28 With respect to the periods from June 1, 2006 through December 31, 2007, and January 1, 2010 through the 1 date of her decision, the ALJ found that plaintiff had severe impairments consisting of degenerative disc 2 disease, lumbar spine spondylosis, facet joint arthritis at the L4-L5 and L5-S1 level, fibromyalgia, and 3 depression, and that her impairments did not meet or equal a listed impairment. [AR 23-24]. The ALJ 4 determined that plaintiff retained the residual functional capacity ( RFC ) for light work, except that she: 5 (1) needed to alternate sitting and standing at 90 minute intervals for one to five minutes at her workstation; 6 (2) could not climb ladders, ropes, or scaffolds, but occasionally could climb ramps or stairs; (3) 7 occasionally could kneel, stoop, crawl, or crouch; (4) frequently could use her hands for gross manipulation; 8 (5) had no restriction in fine finger manipulation; (6) must avoid concentrated exposure to pulmonary 9 irritants such as dust, fumes, gases, or odors; (7) could sustain attention and concentration for at least two- 10 hour intervals; (8) could respond appropriately to supervisors, co-workers, and the general public; and (9) 11 could understand and carry out one- or two-step tasks or instructions. [AR 24]. 12 The ALJ found that, during the periods when plaintiff was not engaged in SGA, her RFC precluded 13 performance of her past relevant work but did not preclude her from performing alternative jobs that exist 14 in significant numbers in the national economy. Specifically, the ALJ found that during those periods. 15 plaintiff could perform the alternative jobs of electronics assembler worker, packing machine operator, and 16 cashier. [AR 28-29]. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the 17 date of her decision. [AR 29]. 18 Standard of Review 19 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 20 evidence or is based on legal error. Stout v. Comm r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 21 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 22 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 23 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 24 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is 25 required to review the record as a whole and to consider evidence detracting from the decision as well as 26 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco 27 v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than one rational 28 interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. Thomas, 2 1 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). 2 Discussion 3 Treating physician s opinion 4 Plaintiff contends that the ALJ erred in evaluating the opinions of treating physician Luis Chamon, 5 D.O. and Roja Tooma, M.D. [JS 3-12]. 6 Dr. Chamon signed a physical capacity assessment form dated April 27, 2009 indicating that plaintiff 7 could perform less than sedentary work due to back pain and because her medications can affect 8 concentration. [AR 258-260]. 9 Dr. Tooma signed a physical capacity assessment form dated February 23, 2011 indicating that 10 plaintiff could perform less than sedentary work due to pain and weakness from spinal stenosis and 11 fibromyalgia. Dr. Tooma also indicated that plaintiff had environmental restrictions requiring her to avoid 12 even moderate exposure to extreme cold and noise, and to avoid all exposure to hazards, such as 13 machinery or heights. Dr. Tooma said that extreme cold remarkably aggravates pain, that plaintiff cannot 14 concentrate with noise, and that she needed to avoid hazards because she had difficulty ambulating due to 15 her diagnoses of spinal stenosis and fibromyalgia. He also said that plaintiff used a scooter intermittently, 16 cannot kneel or crawl, had difficulty balancing, felt weak, and experienced pain that she treated with narcotic 17 analgesics and sleep medication. [AR 581-583]. 18 The ALJ wrote that she had read and considered the forms completed by Dr. Chamon and Dr. 19 Tooma, and that [t]hese checklist-style forms appear to have been completed as an accommodation to the 20 claimant and include only conclusions regarding functional limitations without any rationale for those 21 conclusions. [AR 27]. The ALJ said that she gave those opinions no weight because they were not 22 supported by objective evidence. [AR 27]. 23 The ALJ is required to provide clear and convincing reasons, supported by substantial evidence in 24 the record, for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor, 25 a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on 26 substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Tonapetyan v. Halter, 27 242 F.3d 1144, 1148-1149 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). 28 The ALJ provided specific and legitimate reasons based on substantial evidence for rejecting the 3 1 opinions of Dr. Chamon and Dr. Tooma, which were controverted by the opinions of the consultative 2 examining internist, Dr. Fabella [AR 26-27, 481-486] and the nonexamining state agency physician, Dr. 3 Kalmar [AR 398-405]. Neither Dr. Chamon nor Dr. Tooma cited any objective evidence or clinical findings 4 to support the extreme functional limitations they endorsed. See Bayliss, 427 F.3d at 1217 (noting that an 5 ALJ need not accept a physician s opinion that is conclusory and inadequately supported by clinical 6 findings); Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (stating that an ALJ 7 may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a 8 whole, or by objective medical findings, and holding that the ALJ did not err in giving minimal 9 evidentiary weight to controverted treating source opinions that were in the form of a checklist, and 10 lacked supportive objective medical findings). Dr. Chamon and Dr. Tooma mentioned only plaintiff s 11 subjective symptoms of pain, weakness, and difficulty balancing and concentrating. The ALJ found that 12 plaintiff s complaints of disabling pain, weakness, and other subjective symptoms were not fully credible. 13 Plaintiff has not challenged the ALJ s credibility finding.1 Accordingly, the ALJ permissibly rejected 14 plaintiff s treating doctors assessments that were based primarily on plaintiff s properly discredited 15 subjective complaints (regardless of whether or not those assessments could be considered an 16 accommodation to plaintiff). See Morgan, 169 F.3d at 602 ( A physician s opinion of disability premised 17 to a large extent upon the claimant s own accounts of his symptoms and limitations may be disregarded 18 where those complaints have been properly discounted. ) (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th 19 Cir. 1989)); Brawner v. Sec y of Health & Human Servs., 839 F.2d 432, 433-34 (9th Cir. 1988) (per curiam) 20 (stating that medical conclusions are entitled to less weight to the extent that they rely on the claimant s 21 properly discounted subjective history). 22 Plaintiff also contends that the ALJ s finding that neither of plaintiff s treating physicians opinions 23 was supported by substantial evidence triggered a duty to recontact those doctors to obtain clarification of 24 the basis for their opinions. The ALJ's duty to develop the record further is triggered only when there is 25 26 27 28 1 The ALJ also found that plaintiff was not disabled between January 2009 and December 2009 because she worked as a cosmetologist at the substantial gainful activity level, another finding that is unchallenged. [AR 22-23]. Dr. Chamon s disability opinion is dated April 27, 2009, when plaintiff testified that she was still working as a hairdresser. [AR 41-44]. 4 1 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. 2 Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001) (rejecting the argument that the ALJ breached 3 his duty to develop the record as an impermissible attempt to shift the burden of proving disability away 4 from the claimant). Dr. Kalmar did, in fact, attempt to recontact Dr. Chamon to ascertain the basis for his 5 very restrictive RFC assessment. Dr. Kalmar left telephone messages for Dr. Chamon with the receptionist 6 at Arrowhead Family Health Clinic on August 4, 2009 and again on August 6, 2009 requesting clarification 7 of Dr. Chamon s April 27, 2009 opinion. Dr. Kalmar noted that as of August 11, 2009, the date of his final 8 report, Dr. Chamon had not returned the call. [AR 405]. Because the ALJ attempted to recontact Dr. 9 Chamon, lawfully rejected the unsupported, check-the-box opinions of both Drs. Chamon and Tooma, and 10 relied on substantial evidence in the form of the examining and nonexamining physicians reports, the record 11 was not ambiguous or inadequate to support the ALJ s determination. 12 Alternative jobs 13 Plaintiff contends that the ALJ erred in finding her not disabled at step five because an unresolved 14 conflict exists between the ALJ s finding that plaintiff s RFC allows her to perform the alternative jobs of 15 electronics assembler worker, packing machine operator, and cashier and the classification of those jobs in 16 the Dictionary of Occupational Titles ( DOT ). Plaintiff contends that information in the DOT establishes 17 that those jobs require a Reasoning Development level and other work-related abilities that exceed 18 plaintiff s RFC as found by the ALJ. [JS 12-31]. 19 The Commissioner relies primarily on the DOT for information about the requirements of work in 20 the national economy. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting Social Security 21 Ruling ( SSR ) 00-4p, 200 WL 1898704, at *2)). There is a rebuttable presumption that the information in 22 the DOT and its supplementary Selected Characteristics is controlling. Villa v. Heckler, 797 F.2d 794, 798 23 (9th Cir. 1986); accord, Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). The Commissioner also 24 uses testimony from vocational experts to obtain occupational evidence. Massachi, 486 F.3d at 1153. Under Ninth Circuit law and the SSR 00-4p2, an ALJ may not rely on a vocational expert s testimony 25 26 27 28 2 Social security rulings are binding on all components of the Social Security Administration [SSA] and 5 1 regarding the requirements of a particular job without first inquiring whether that testimony conflicts with 2 the DOT. If an apparent conflict exists, the ALJ must obtain an explanation for any apparent conflict, 3 determine whether the vocational expert s explanation is reasonable, decide whether a basis exists for relying 4 on the expert rather than on the DOT, and explain how he or she resolved the conflict. Massachi, 486 F.3d 5 at 1152-1153; see SSR 00-4p, 2000 WL 1898704, at *2-*4. This procedural requirement ensure[s] that 6 the record is clear as to why an ALJ relied on a vocational expert s testimony, particularly in cases where 7 the expert s testimony conflicts with the [DOT]. Massachi, 486 F.3d at 1153. 8 The ALJ failed to ask the vocational expert if his testimony conflicted with the DOT or to obtain an 9 explanation for and resolve the apparent conflict between that testimony and the DOT. [See AR 71-77]. 10 This was legal error. See Massachi, 486 F.3d at 1154 (reversing and remanding where the ALJ did not 11 ask the vocational expert whether her testimony conflicted with the [DOT] and, if so, whether there was a 12 reasonable explanation for the conflict, and therefore the court cannot determine whether the ALJ properly 13 relied on her testimony ) (footnotes omitted); Taylor v. Comm r of Soc. Sec. Admin., 659 F.2d 1228, 1235 14 (9th Cir. 2011) (noting that the ALJ failed to ask the vocational expert whether there was a conflict between 15 her testimony and the DOT, and that [n]othing in the rules relieves the ALJ of the responsibility of ensuring 16 that there was no conflict, even if the vocational expert testified that [the claimant] could perform other 17 jobs ). 18 The ALJ s failure to inquire of the vocational expert about any conflict with the DOT would be 19 harmless were there no conflict, or if the vocational expert had provided sufficient support for [his] 20 conclusion so as to justify any potential conflicts, as in Johnson. Massachi, 486 F.3d at 1154 n.19. Plaintiff 21 contends that there are conflicts between the vocational expert s testimony and information about those jobs 22 in the DOT, and that neither the ALJ nor the vocational expert articulated reasons for deviating from the 23 24 25 26 represent precedent final opinions and orders and statements of policy and interpretations of the SSA. SSRs reflect the official interpretation of the SSA and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. SSRs do not carry the force of law, but they are binding on ALJs nonetheless. 27 28 Bray v. Comm r of Soc. Sec. Admin., 554 F.3d. 1219, 1224 (9th Cir. 2009) (internal quotation marks, citations, alteration, and footnote omitted). 6 1 DOT. Plaintiff s argument has merit. First, plaintiff contends that all three of the jobs identified by the vocational expert require a 2 3 Reasoning Development level that exceeds her RFC. DOT job classifications include a General 4 Educational Development ( GED ) definition component, which embraces those aspects of education 5 (formal and informal) which are required of the worker for satisfactory job performance. The GED 6 component is comprised of three discrete scales: Reasoning Development, Math Development, and 7 Language Development. The reasoning, math, and language development scales range from Level 1 (low) 8 to Level 6 (high). 9 The DOT classification for electronics assembler worker (DOT job number 726.687-010) and 10 packing machine operator (DOT job number 920.685-078) require Level 2 reasoning, which requires the 11 ability to [a]pply commonsense understanding to carry out detailed but uninvolved written or oral 12 instructions. Deal with problems involving a few concrete variables in or from standardized situations. The 13 third job, cashier II (DOT job number 211.462-010) requires Level 3 reasoning, which requires the ability 14 to [a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic 15 form. Deal with problems involving several concrete variables in or from standardized situations. 16 The ALJ explicitly found that plaintiff would be able to understand and carry out 1 to 2 step[ ] tasks 17 or instructions. [AR 24]. Plaintiff contends that a limitation to one- or two-step tasks or instructions 18 corresponds to Level 1 reasoning, which the DOT defines as the ability to [a]pply commonsense 19 understanding to carry out simple one- or two-step instructions. Deal with standardized situations with 20 occasional or no variables in or from these situations encountered on the job. DOT, Appendix C (italics 21 added). 22 As plaintiff correctly points out, this Court has held that an explicit limitation to jobs involving no 23 more than one- or two-step instructions corresponds to the DOT definition of Level 1 reasoning. Grigsby 24 v. Astrue, 2010 WL 309013, at *2-*3 (C.D. Cal. Jan. 22, 2010) (holding that where the ALJ made a clear 25 and unambiguous RFC finding limiting the claimant to tasks involving two steps of instructions, the ALJ 26 erred in relying on a vocational expert s testimony that the claimant could perform Level 2 reasoning jobs 27 without explaining the conflict between the expert s testimony and the DOT). Plaintiff cites numerous other 28 district court decisions that have reached the same conclusion, along with some contrary district court 7 1 decisions. [See JS 16-17 (collecting cases)]. 2 Defendant cites an unpublished Ninth Circuit decision in which the plaintiff-appellant contended that 3 the ALJ, who limited the plaintiff to one to two-step simple instruction kinds of jobs, improperly relied 4 on a vocational expert s testimony that she could perform DOT jobs requiring Level 2 or Level 3 reasoning. 5 Bordbar v. Astrue, 475 Fed.Appx. 214, 215 (9th Cir. Jul. 30, 2012). The Ninth Circuit held that it was 6 unnecessary to determine whether the vocational expert s testimony conflicted with the ALJ s RFC finding 7 because any error was harmless. We have no doubt, based on the record, that Bordbar could 8 perform jobs at Reasoning Level Two. Both the consultative examiner and the State Agency 9 medical consultant opined that Bordbar could perform detailed instructions, and the ALJ 10 found those opinions to be reasonable. 11 administrative proceedings that her ability to follow written and spoken instructions was 12 good, and, even now, she does not argue that she is incapable of performing jobs at 13 Reasoning Level Two. Thus, the ALJ properly relied on the VE's testimony about jobs at 14 Reasoning Level Two in concluding that Borbar was not disabled. 15 Indeed, Bordbar conceded during the Bordbar, 475 Fed.Appx. at 215. 16 As an unpublished decision, Bordbar is not binding precedent. It is also distinguishable. Plaintiff 17 does not concede that her ability to follow instructions is good, and she also argues that she is incapable 18 of performing Reasoning Level 2 jobs. An apparent conflict exists between the ALJ s explicit, unambiguous 19 finding that plaintiff is limited to 1 to 2 step[ ] tasks or instructions [AR 24] and the vocational expert s 20 testimony that plaintiff can perform jobs requiring more than Level 1 reasoning, which explicitly and 21 unambiguously involves the ability to [a]pply commonsense understanding to carry out simple one- or 22 two-step instructions. The ALJ did not inquire about the existence of a conflict between the vocational 23 expert s testimony and the DOT and did not identify of resolve the apparent conflict between those two 24 sources of evidence, thereby committing legal error under Massachi and SSR 00-4p. 25 Second, plaintiff contends that the ALJ erred because there is an unresolved conflict between the 26 vocational expert s testimony and the DOT s classification of the job of packing machine operator, DOT 27 job number 920.685-078. The DOT classifies that job as medium work that requires constant handling (that 28 is, two-thirds of the time or more) and frequent fingering (that is, from one-third to two-thirds of the time). 8 1 [JS 18]. The ALJ s hypothetical question and her RFC finding specified the ability to perform a reduced 2 range of light work with the ability to frequently use her hands for gross manipulation and no limitation 3 in fingering. [AR 24, 74-75]. Therefore, an unresolved conflict exists between the vocational expert s 4 testimony and the DOT s classification of the job of packing machine operator as medium work that 5 involves constant (rather than frequent ) handling. 6 Finally, plaintiff contends that the ALJ erred because there is an unresolved conflict between the 7 vocational expert s testimony and the DOT because the ALJ found that she should avoid concentrated 8 exposure to pulmonary irritants such as dust, fumes, gases, or odors, and the DOT indicates that the job of 9 electronics assembler worker would require exposure to pulmonary irritants. [AR 24]. The DOT does not 10 classify jobs according to exposure to dust, fumes, gases, or odors, but it includes job definition components 11 that encompass exposure to pulmonary irritants: atmospheric conditions, toxic caustic chemicals, and 12 other environmental restrictions. The DOT definition for electronics assembler worker states that no 13 atmospheric conditions or other environmental restrictions are present, but that the job requires exposure 14 to toxic caustic chemicals occasionally, up to one-third of the time. The ALJ precluded plaintiff from 15 concentrated exposure to pulmonary irritants, but did not preclude her from moderate exposure or any 16 exposure. Because the DOT states that electronics assembler workers are exposed to such chemicals 17 occasionally, rather than frequently or constantly, there is no apparent conflict between the vocational 18 expert s testimony and the DOT in this regard. 19 The ALJ s legal error was not harmless because: (1) the ALJ did not inquire about or identify any 20 conflict between the vocational expert s testimony and the DOT; (2) apparent conflicts exist between those 21 two sources of vocational evidence; and (3) neither the ALJ or the vocational expert provided a reasonable 22 explanation to reconcile those apparent conflicts and rebut the presumption that the information in the DOT 23 controls. See Massachi, 486 F.3d at 1153-1154 & n.19 (holding that where the ALJ did not ask the 24 vocational expert whether her testimony conflicted with the [DOT], and, if so, whether there was a 25 reasonable explanation for the conflict, the ALJ s error was not harmless because there was an apparent 26 conflict with no basis for the vocational expert s deviation ); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 27 2001) (holding that in order for an ALJ to rely on a job description in the [DOT] that fails to comport with 28 a claimant s noted limitations, the ALJ must definitively explain this deviation, and reversing and 9 1 remanding where neither the ALJ nor the vocational expert provided the required explanation). 2 This Court declines defendant s invitation to search the record for evidence that could support the 3 ALJ s step-five finding and concludes that a remand for further administrative proceedings is the appropriate 4 remedy. A reviewing court such as this one is constrained to review the reasons the ALJ asserts to justify 5 denying benefits, Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), and should not seek to fill the 6 fact-finding role of the ALJ by developing, de novo, [its] own interpretation of ambiguous evidence. 7 Lingenfelter v. Astrue, 504 F.3d 1028, 1044 (9th Cir. 2007) (Beezer, J., dissenting from an order remanding 8 for the payment of benefits) (citing INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) ( A court of appeals 9 is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own 10 conclusions based on such an inquiry. ) (internal quotation marks omitted)); see Ayala v. Colvin, 2013 WL 11 951189, at *2 (C.D. Cal. Mar. 12, 2103) (reversing and remanding for further administrative proceedings 12 where there was an apparent, unexplained conflict between the vocational expert s testimony and the DOT, 13 and rejecting the Commissioner s contention that the record as a whole, including evidence of plaintiff s 14 education and work experience, supports the ALJ s [step-five] determination . . . . To the extent that such 15 evidence may have explained the deviation between the [vocational expert s] testimony and the DOT, the 16 ALJ could have cited it as support for his step five determination but did not do so. ). Conclusion 17 18 For the reasons described above, the Commissioner s decision is not based on substantial evidence 19 in the record and is not free of legal error. Accordingly, the Commissioner's decision is reversed, and this 20 case is remanded to the Commissioner for further administrative proceedings consistent with this 21 memorandum of decision. 22 IT IS SO ORDERED. 23 24 November 12, 2013 25 26 27 _________________________ ANDREW J. WISTRICH United States Magistrate Judge 28 10
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