Vicente Joaquin Griego v. Carolyn W Colvin, No. 5:2014cv00375 - Document 17 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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Vicente Joaquin Griego v. Carolyn W Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 VICENTE JOAQUIN GRIEGO, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Commissioner ) of Social Security, ) ) Defendant. ) ) ___________________________________) NO. ED CV 14-375-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on March 6, 2014, seeking review of 26 the Commissioner s denial of disability benefits. The parties filed a 27 consent to proceed before a United States Magistrate Judge on April 3, 28 2014. Plaintiff filed a motion for summary judgment on August 6, Dockets.Justia.com 1 2014. Defendant filed a motion for summary judgment on September 2, 2 2014. The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; Minute Order, filed March 14, 2014. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff, a former welder-fitter and welder-fabricator, asserts 8 disability based on a combination of alleged physical impairments 9 (Administrative Record ( A.R. ) 39-46, 65-66, 166-75). An 10 Administrative Law Judge ( ALJ ) found that severe exertional and non- 11 exertional impairments prevent Plaintiff from using either of his 12 upper extremities for work above the shoulder or overhead (A.R. 14- 13 15). 14 no functional use of the right upper extremity (A.R. 15, 29). 15 ALJ agreed that Plaintiff is unable to perform any of Plaintiff s past 16 relevant work (A.R. 19). The ALJ further found that Plaintiff, who was right handed, has The 17 18 To determine whether there exist other jobs Plaintiff can 19 perform, the ALJ questioned a vocational expert (A.R. 51-55). The 20 vocational expert testified that a person having the functional 21 limitations the ALJ found to exist1 could perform the jobs of 22 information clerk and parking lot signaler (A.R. 51-55). 23 explanation, the vocational expert stated that his testimony was 24 consistent with the information contained in the Dictionary of 25 Occupational Titles ( DOT ) (A.R. 55). Without Without explanation, the ALJ 26 27 28 1 The ALJ assessed Plaintiff as limited to less than a full range of light work, with multiple restrictions including but not limited to the restrictions described above (A.R. 15). 2 1 determined that the vocational expert s testimony is consistent with 2 the information contained in the [DOT] (A.R. 20). 3 the vocational expert s testimony in finding Plaintiff not disabled 4 (A.R. 20). The ALJ relied on The Appeals Council denied review (A.R. 1-3). 5 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. section 405(g), this Court reviews the Administration s decision to determine if: (1) the Administration s 10 findings are supported by substantial evidence; and (2) the 11 Administration used correct legal standards. 12 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 13 499 F.3d 1071, 1074 (9th Cir. 2007). 14 relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion. 16 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 17 454 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 18 19 INTRODUCTION 20 21 Without explanation, the ALJ relied on vocational expert 22 testimony in apparent (or at least possible) conflict with information 23 contained in the DOT. 24 conclude that the Administration thereby carried its burden of 25 demonstrating the existence of jobs Plaintiff can perform. 26 appropriate. 27 /// 28 /// On the present record, the Court is unable to 3 Remand is 1 DISCUSSION 2 3 After a claimant satisfies his initial burden of showing that a 4 physical or mental impairment prevents him from performing his 5 previous work, the burden shifts to the [Administration] to show that 6 the claimant has the capacity to perform other work and that such 7 other work exists in the national economy. 8 F.2d 530, 532 (9th Cir. 1985). 9 non-exertional impairments significantly limit his or her range of Stone v. Heckler, 761 Where, as here, a claimant s 10 work the grids do not apply, and the testimony of a vocational expert 11 is required to identify specific jobs within the claimant s 12 abilities. 13 Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999); Burkhart v. 14 Bowen, 856 F.2d 1335, 1340-41 (9th Cir. 1988). Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988); see 15 16 In the present case, the ALJ attempted to carry the 17 Administration s burden through reliance on the testimony of a 18 vocational expert. 19 having no ability to reach above the shoulder or overhead, and no 20 ability to use the right hand at all, nevertheless could perform the 21 jobs of information clerk and parking lot signaler. 22 vocational expert and the ALJ claimed that there exists no 23 inconsistency between this testimony and the information contained in 24 the DOT. 25 /// 26 /// 27 /// 28 /// The vocational expert testified that a person 4 The Social Security Ruling 00-4p2 provides: 1 2 3 When a [vocational expert] provides evidence about the 4 requirements of a job or occupation, the [ALJ] has an 5 affirmative responsibility to ask about any possible 6 conflict between that [vocational expert] evidence and 7 information provided in the DOT . . .3 8 9 If the [vocational expert s] evidence appears to 10 conflict with the DOT, the [ALJ] will obtain a reasonable 11 explanation for the apparent conflict. 12 13 When vocational evidence provided by a [vocational 14 expert] is not consistent with information in the DOT, the 15 [ALJ] must resolve this conflict before relying on the 16 [vocational expert] evidence to support a determination or 17 decision that the individual is or is not disabled. 18 [ALJ] will explain in the determination or decision how he 19 or she resolved the conflict. 20 the resolution of the conflict irrespective of how the 21 conflict was identified (emphasis added). 22 The The adjudicator must explain /// 23 24 25 26 27 28 2 Social Security rulings are binding on ALJs. v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 3 Terry For this purpose, the information provided in the DOT includes the information provided in the DOT s companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO). See SSR 00-4p. 5 1 Elsewhere, SSR 00-4p similarly provides that [w]hen there is an 2 apparent unresolved conflict between [vocational expert] evidence and 3 the DOT, the [ALJ] must elicit a reasonable explanation for the 4 conflict before relying on the [vocational expert] evidence to support 5 a determination or decision about whether the claimant is disabled. 6 (emphasis added). 7 that the record is clear as to why an ALJ relied on a vocational 8 expert s testimony, particularly in cases where the expert s testimony 9 conflicts with the [DOT]. The procedural requirements of SSR 00-4p ensure Massachi v. Astrue, 486 F.3d 1149, 1153 10 (9th Cir. 2007); see Light v. Social Security Administration, 119 F.3d 11 789, 794 (9th Cir. 1997) (error exists where [n]either the ALJ nor 12 the vocational expert explained the reason for departing from the 13 DOT ); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) ( an ALJ 14 may rely on expert testimony which contradicts the DOT, but only 15 insofar as the record contains persuasive evidence to support the 16 deviation ); see also Burkhart v. Bowen, 856 F.2d at 1341 17 (Administration may not speculate concerning the requirements of 18 particular jobs). 19 20 Despite the vocational expert s and the ALJ s conclusory 21 assertions to the contrary, there exist apparent (or at least 22 possible ) conflicts between the vocational expert s testimony and 23 information contained in the DOT. 24 identified jobs require frequent reaching. 25 237.367-018 (information clerk); 1991 WL 687870; DOT 915.667-014 26 (parking lot signaler). Reaching means extending the hands and 27 arms in any direction. SSR 85-15 (emphasis added); see Mkhitaryan v. 28 Astrue, 2010 WL 1752162, at *3 (C.D. Cal. April 27, 2010) (citing SCO, According to the DOT, both of the 6 See 1991 WL 672187; DOT 1 Appendix C). Any direction would appear to include overhead. See 2 id. 3 requirement of frequent reaching and a preclusion or restriction on 4 reaching overhead or above the shoulder. 5 Colvin, 2014 WL 4795037, at *7-8 (E.D. Cal. Sept. 25, 2014); Skelton 6 v. Commissioner, 2014 WL 4162536, at *13 (D. Or. Aug. 18, 2014); Lamb 7 v. Colvin, 2014 WL 3894919, at *5-6 (E.D. Cal. Aug. 4, 2014); Riffner 8 v. Colvin, 2014 WL 3737963, at *4-5 (C.D. Cal. July 29, 2014); Nguyen 9 v. Colvin, 2014 WL 2207058, at *2-3 (C.D. Cal. May 28, 2014); Barnes Consequently, many courts have discerned a conflict between the See, e.g., Carpenter v. 10 v. Colvin, 2014 WL 931123, at *7-8 (W.D. Wash. March 10, 2014); 11 Samsaguan v. Colvin, 2014 WL 218419, at *2-3 (C.D. Cal. Jan. 21, 12 2014); Giles v. Colvin, 2013 WL 4832723, at *4 (C.D. Cal. Sept. 10, 13 2013); Duff v. Astrue, 2012 WL 3711079, at *3-4 (C.D. Cal. Aug. 28, 14 2012); McQuone v. Astrue, 2012 WL 3704795, at *3-4 (E.D. Cal. Aug. 24, 15 2012); Newman v. Astrue, 2012 WL 1884892, at *5 (C.D. Cal. May 23, 16 2012); Richardson v. Astrue, 2012 WL 1425130, at *4-5 (C.D. Cal. 17 April 25, 2012); Bentley v. Astrue, 2011 WL 2785023, at *3-4 (C.D. 18 Cal. July 14, 2011); Bermudez v. Astrue, 2011 WL 997290, at *3-4 (C.D. 19 Cal. March 21, 2011); Hernandez v. Astrue, 2011 WL 223595, at *5 (C.D. 20 Cal. Jan. 21, 2011); Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 21 (C.D. Cal. April 27, 2010); Caruso v. Astrue, 2008 WL 1995119, at *7 22 (N.D. N.Y. May 6, 2008); see also Prochaska v. Barnhart, 454 F.3d 731, 23 736 (7th Cir. 2006) ( It is not clear to us whether the DOT s 24 requirements include reaching above shoulder level and this is exactly 25 the sort of inconsistency the ALJ should have resolved with the 26 /// 27 /// 28 /// 7 1 expert s help ).4 2 3 Another apparent (or at least possible ) conflict between the 4 testimony of the vocational expert and the information contained in 5 the DOT relates to Plaintiff s inability to use his right hand for any 6 purpose. 7 requirement as contemplating bilateral reaching. 8 v. Astrue, 2008 WL 2563251, at *8 (W.D. Va. June 23, 2008); Southers 9 v. Barnhart, 2006 WL 3771813, at *4 n.1 (W.D. Va. Dec. 21, 2006); Some courts have interpreted the DOT s reaching See, e.g., Dickerson 10 Doucette v. Barnhart, 2004 WL 2862174, at *5 (D. Me. Dec. 13, 2004), 11 adopted by 2005 WL 23344 (D. Me. Jan. 4, 2005); Hall-Grover v. 12 Barnhart, 2004 WL 1529283, at *4 (D. Me. Apr. 30, 2004); see also 13 Fortes v. Astrue, 2009 WL 734161, at *1, 4-5 (S.D. Cal. Mar. 18, 2009) 14 (discerning conflict between DOT requirement of frequent handling5 and 15 vocational expert testimony that a person whose right hand is limited 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case law on this issue is not uniform. Several courts have discerned no conflict between the requirement of frequent reaching and a preclusion or restriction on reaching overhead or above the shoulder. See Parker v. Colvin, 2014 WL 4662095, at *9 (W.D. Pa. Sept. 18, 2014); King v. Commissioner, 2013 WL 3456957, at *3 (E.D. Mich. July 9, 2013); Alarcon v. Astrue, 2013 WL 1315968, at *4 (S.D. Cal. March 28, 2013); Lidster v. Astrue, 2012 WL 13731, at *3 (S.D. Cal. Jan. 3, 2012); Provenzano v. Astrue, 2009 WL 4906679, at *5 (C.D. Cal. Dec. 17, 2009); Fuller v. Astrue, 2009 WL 4980273, at *2 (C.D. Cal. Dec. 15, 2009); Rodriguez v. Astrue, 2008 WL 2561961, at *2 (C.D. Cal. June 25, 2008); see also Sevier v. Colvin, 2014 WL 2717999 (S.D. Ind. June 16, 2014) (affirming Commissioner s reliance on a vocational expert s opinion that the claimant, who was precluded from overhead work, could function as an information clerk ). 5 According to the DOT, the jobs of information clerk and parking lot signaler require frequent handling, as well as frequent reaching. See 1991 WL 672187; DOT 237.367-018 (information clerk); 1991 WL 687870; 915.667-014 (parking lot signaler). 8 1 to occasional handling could perform the job).6 2 3 Given the apparent (or at least possible ) conflicts between 4 the vocational expert s testimony and the information in the DOT 5 concerning both jobs identified, the Court is unable to conclude on 6 the present record that the Administration carried its burden of 7 demonstrating the existence of jobs Plaintiff can perform. 8 the vocational expert nor the ALJ recognized the existence of any 9 conflict, so neither the vocational expert nor the ALJ provided any Neither 10 explanation that might support preferring the vocational expert s 11 testimony over the arguably conflicting information in the DOT. 12 SSR 00-4p; Light v. Social Security Administration, 119 F.3d at 794 13 (error that [n]either the ALJ nor the vocational expert explained the 14 See 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case law on this issue is also not uniform. Many courts have refused to discern any conflict between the requirement of frequent reaching and a vocational expert s testimony that a person restricted in one extremity could perform the job. See, e.g., Nagata v. Colvin, 2014 WL 4385943, at *3 (C.D. Cal. Sept. 3, 2014); Bickford v. Commissioner, 2014 WL 1302459, at *2 (E.D. Cal. March 28, 2014); Fluck v. Colvin, 2013 WL 5111772, at *5-6 (E.D. Tex. Sept. 12, 2013); Landrum v. Colvin, 2013 WL 3819675, at *6 (C.D. Cal. July 23, 2013); Palomares v. Astrue, 887 F. Supp. 2d 906, 920 (N.D. Cal. 2012); McConnell v. Astrue, 2010 WL 1946728, at *7 (C.D. Cal. May 10, 2010); Calip v. Astrue, 2009 WL 113011, at *6-7 (W.D. Okla. Jan. 15, 2009); Phares v. Commissioner, 2008 WL 2026097, at *21-22 (N.D. W.Va. May 9, 2008); Feibusch v. Astrue, 2008 WL 583554, at *5 (D. Haw. March 4, 2008); Banks v. Astrue, 537 F. Supp. 2d 75, 82 (D.D.C. 2008); Diehl v. Barnhart, 357 F. Supp. 2d 804, 822 (E.D. Pa. 2005); see also Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (conflict deemed tangential ); Sims v. Colvin, 2014 WL 3362286, at *7 (N.D. Cal. July 7, 2014) (citing a pre-2007 unpublished Ninth Circuit decision (in violation of Ninth Circuit Rule 36-3(c)) to find an absence of conflict); Ridenhour v. Astrue, 2009 WL 77765, at *13 (N.D. Tex. Jan. 12, 2009) ( no patent conflict that would require overturning the Commissioner s decision ). 9 1 reason for departing from the DOT ); Johnson v. Shalala, 60 F.3d at 2 1435 ( an ALJ may rely on expert testimony which contradicts the DOT, 3 but only insofar as the record contains persuasive evidence to support 4 the deviation ). 5 6 On the present record, the Court cannot find the error to have 7 been harmless. The vocational expert did opine that one-handed 8 individuals who can never reach overhead can perform the identified 9 jobs, but the vocational expert failed to explain the bases for this 10 opinion. Moreover, as previously indicated, the ALJ failed to explain 11 why the ALJ preferred the vocational expert s conclusory opinion over 12 the seemingly conflicting information provided in the DOT. 13 the ALJ (and the vocational expert) denied the existence of any 14 possible conflict. 15 the errors were harmless. 16 4694798, at *6-7 (9th Cir. Sept. 23, 2014) (a failure to develop the 17 record is not harmless unless it is clear from the record that the 18 error was inconsequential to the ultimate nondisability 19 determination ; citing Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 20 2008)); see also McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) 21 (error not harmless where the reviewing court can determine from the 22 circumstances of the case that further administrative review is 23 needed to determine whether there was prejudice from the error ). Rather, Accordingly, the Court is unable to conclude that See Garcia v. Commissioner, 2014 WL 24 25 When a court reverses an administrative determination, the 26 proper course, except in rare circumstances, is to remand to the 27 agency for additional investigation or explanation. 28 537 U.S. 12, 16 (2002) (citations and quotations omitted). 10 INS v. Ventura, Remand is 1 proper where, as here, additional administrative proceedings could 2 remedy the defects in the decision. 3 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 4 1496, 1497 (9th Cir. 1984). McAllister v. Sullivan, 888 F.2d 5 6 CONCLUSION 7 8 9 10 For all of the foregoing reasons, Plaintiff s and Defendant s motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 DATED: October 15, 2014. 15 16 17 _____________/S/______________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11

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