Jamila Shani Asha Johnson v. Carolyn W. Colvin, No. 5:2013cv02112 - Document 23 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (twdb)
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Jamila Shani Asha Johnson v. Carolyn W. Colvin Doc. 23 O 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JAMILA SHANI ASHA JOHNSON, Plaintiff, 12 13 14 15 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 ) Case No. ED CV 13-2112 JCG ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) ) Jamila Shani Asha Johnson (“Plaintiff”) challenges the Social Security Commissioner (“Defendant”)’s decision denying her application for disability benefits. Plaintiff contends that the Administrative Law Judge (“ALJ”) improperly relied on the vocational expert (“VE”) in determining that Plaintiff could perform alternative work. (See Joint Stip. at 5-12, 15-16.) Specifically, Plaintiff argues that the ALJ failed to resolve an apparent conflict between the VE’s testimony and the Dictionary of Occupational Titles (“DOT”). (Id.) The Court agrees with Plaintiff for the reasons discussed below. A. The ALJ Erred by Relying on the VE’s Testimony Pursuant to Social Security Ruling (“SSR”) 00-4p, when a VE provides evidence about the requirements of a job or occupation, the ALJ has “an affirmative Dockets.Justia.com 1 responsibility to ask about any possible conflict” between that testimony and the 2 DOT and to obtain a reasonable explanation for any apparent conflict. 2000 WL 3 1898704, at *4 (Dec. 4, 2000). An ALJ may not rely on a VE’s testimony without 4 first inquiring whether the testimony conflicts with the DOT. Massachi v. Astrue, 5 486 F.3d 1149, 1152 (9th Cir. 2007). As a rule, neither the DOT nor the testimony of the VE “automatically 6 7 ‘trumps’ when there is a conflict.” Id. at 1153 (footnote omitted). Accordingly, the 8 ALJ must first ascertain whether a conflict exists. Id. If so, the ALJ “must then 9 determine whether the [VE’s] explanation for the conflict is reasonable and whether 10 a basis exists for relying on the expert rather than the [DOT].” Id. Here, the ALJ erred by relying on testimony from the VE which, without 11 12 explanation, deviated from the DOT. Two reasons guide this determination. First, the VE’s testimony that an individual with Plaintiff residual functional 13 14 capacity (“RFC”) could perform work as a sewing machine operator, (DOT 786.68215 018), furniture-rental consultant, (DOT 295.357-018), and production solderer, 16 (DOT 813.684-022) conflicted with the DOT. (See Administrative Record (“AR”) 17 at 50, 71.) Specifically, in her RFC determination, the ALJ found that Plaintiff 18 retained the ability to perform a range of light work with “no overhead reaching with 19 either extremity,” among other limitations. (Id. at 68.) Nevertheless, according to 20 the DOT, the physical demands of the jobs identified by the VE all include at least 21 some overhead reaching. See DOT 786.682-018, 1991WL 681010 (sewing machine 22 operator requires constant reaching), DOT 739.687-030, 1991 WL 672589 23 (furniture-rental consultant requires occasional reaching), DOT 295.357-018 1991 24 WL 681592 (production solderer requires frequent reaching).1/ In this context, reaching means “extending the hands and arms in any 25 26 27 28 1/ “Occasional” means occurring up to 1/3 of the day, “frequent” means from 1/3 to 2/3 of the day, and “constant” means for 2/3 or more of the day. See SSR 83–10, 1983 WL 31251, at *6; DOT 739.687–030, 1991 WL 680180. 2 1 direction.” SSR 85-15, 1985 WL 56857, at *7 (emphasis added). Contrary to 2 Defendant’s assertion that the descriptions of the identified jobs do not specify what 3 types of reaching are required, (see Joint Stip. at 15), all of them contemplate 4 significant potential reaching above the shoulders. Accordingly, an apparent conflict 5 existed between the DOT’s occupational definition of the sewing machine operator, 6 furniture rental consultant, and production solderer positions, and the VE’s 7 testimony that Plaintiff could perform such work. Second, because the VE did not acknowledge the apparent conflict between 8 9 her testimony and the DOT, neither the VE nor the ALJ attempted to explain or 10 justify the deviation. See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) 11 (An ALJ may rely on VE testimony that “contradicts the DOT, but only insofar as 12 the record contains persuasive evidence to support the deviation.”); Massachi, 486 13 F.3d at 1153. This was error. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th 14 Cir. 2008) (ALJ erred in relying on VE testimony that deviated from DOT because 15 “ALJ did not identify what aspect of the VE’s experience warranted deviation from 16 the DOT, and did not point to any evidence in the record other than the VE’s sparse 17 testimony for the deviation.”). In the absence of clear evidence in the record to 18 support the deviation, the Court “cannot determine whether the ALJ properly relied 19 on [the VE’s] testimony.” Massachi, 486 F.3d at 1154. Thus, the Court finds that 20 the ALJ’s decision was not supported by substantial evidence.2/ 21 B. Remand is Warranted 22 With error established, this Court has discretion to remand or reverse and 23 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 24 useful purpose would be served by further proceedings, or where the record has been 25 26 27 28 2/ The Commissioner argues that the ALJ’s error was harmless because the VE identified additional positions that Plaintiff could perform. (Joint Stip. at 15.) However, those positions, including tube operator, (DOT 239.687-014), telephone quotation clerk, (DOT 237.367-046), and addresser, (DOT 209.587-010), also require “frequent” reaching. (See AR at 50-51.) 3 1 fully developed, it is appropriate to exercise this discretion to direct an immediate 2 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 3 But where there are outstanding issues that must be resolved before a determination 4 can be made, or it is not clear from the record that the ALJ would be required to find 5 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 6 See id. at 594. 7 Here, in light of the error described above, the ALJ shall reevaluate the 8 testimony of the VE, and obtain a reasonable explanation for any conflict between 9 that testimony and the DOT, specifically with respect to Plaintiff’s preclusion from 10 overhead reaching. See, e.g., Hernandez v. Astrue, 2011 WL 223595, at *5 (C.D. 11 Cal. 2011). 12 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 13 REVERSING the decision of the Commissioner denying benefits and 14 REMANDING the matter for further administrative action consistent with this 15 decision. 16 17 Dated: November 18, 2014 18 19 ___________________________________ 20 Hon. Jay C. Gandhi United States Magistrate Judge 21 22 23 24 25 26 27 28 4
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