Raymond David Ruiloba v. Carolyn Colvin, No. 5:2015cv01280 - Document 24 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See memorandum for details. (hr)
Download PDF
<![CDATA[
Raymond David Ruiloba v. Carolyn Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAYMOND DAVID RUILOBA, 12 Plaintiff, 13 14 15 v. Case No. EDCV 15-1280 JC MEMORANDUM OPINION AND ORDER OF REMAND CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 SUMMARY On June 30, 2015, Raymond David Ruiloba (“plaintiff”) filed a Complaint 20 seeking review of the Commissioner of Social Security’s denial of plaintiff’s 21 applications for benefits. The parties have consented to proceed before the 22 undersigned United States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; July 2, 2015 Case Management Order ¶ 5. 27 /// 28 /// Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On September 16, 2011, plaintiff filed applications for Supplemental 7 Security Income and Disability Insurance Benefits alleging disability on July 28, 8 2011, due to multiple physical impairments. (Administrative Record (“AR”) 215, 9 222, 241). The Administrative Law Judge (“ALJ”) examined the medical record 10 and heard testimony from plaintiff (who was represented by counsel) and a 11 vocational expert on September 16, 2013. (AR 26-62). 12 On October 25, 2013, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 12-21). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: radiculopathy in the 15 bilateral legs – left more frequent than right, degenerative disc disease with disc 16 protrusion and nerve root impingement, asthma, obesity, depressive disorder (not 17 otherwise specified), and anxiety/panic disorder (AR 14); (2) plaintiff’s 18 impairments, considered singly or in combination, did not meet or medically equal 19 a listed impairment (AR 15-16); (3) plaintiff retained the residual functional 20 capacity to perform sedentary work (20 C.F.R. §§ 404.1567(a), 416.967(a)) with 21 additional limitations1 (AR 16); (4) plaintiff could not perform any past relevant 22 work (AR19); (5) there are jobs that exist in significant numbers in the national 23 economy that plaintiff could perform, specifically Assembler, Packer, and 24 25 26 27 28 1 The ALJ determined that plaintiff also (i) could never climb ladders, ropes, or scaffolds; (ii) could occasionally climb ramps or stairs; (iii) could occasionally balance, stoop, crouch, kneel, or crawl; (iv) could perform occasional bilateral foot control operation with the lower extremities; (v) needed to avoid concentrated exposure to irritants “such as flumes [sic], odors, dust, and gases”; (vi) required the option to sit or stand at will to avoid pain; and (vii) could occasionally interact with the public. (AR 16). 2 1 Inspector (AR 20); and (6) plaintiff’s allegations regarding the intensity, 2 persistence, and limiting effects of subjective symptoms were not entirely credible 3 (AR 17). 4 The Appeals Council denied plaintiff’s application for review. (AR 1-5). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 8 unable “to engage in any substantial gainful activity by reason of any medically 9 determinable physical or mental impairment which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous period of not 11 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 12 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 13 impairment must render the claimant incapable of performing the work the 14 claimant previously performed and incapable of performing any other substantial 15 gainful employment that exists in the national economy. Tackett v. Apfel, 180 16 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is required to use the 18 following five-step sequential evaluation process: 19 (1) so, the claimant is not disabled. If not, proceed to step two. 20 21 Is the claimant presently engaged in substantial gainful activity? If (2) Is the claimant’s alleged impairment sufficiently severe to limit 22 the claimant’s ability to work? If not, the claimant is not 23 disabled. If so, proceed to step three. 24 (3) Does the claimant’s impairment, or combination of 25 impairments, meet or equal an impairment listed in 20 C.F.R. 26 Part 404, Subpart P, Appendix 1? If so, the claimant is 27 disabled. If not, proceed to step four. 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform claimant’s past relevant work? If so, the claimant is 3 not disabled. If not, proceed to step five. 4 (5) Does the claimant’s residual functional capacity, when 5 considered with the claimant’s age, education, and work 6 experience, allow the claimant to adjust to other work that 7 exists in significant numbers in the national economy? If so, 8 the claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 14 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 15 proving disability). 16 B. 17 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 18 benefits only if it is not supported by substantial evidence or if it is based on legal 19 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 20 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 21 (9th Cir. 1995)). Federal courts may review only the reasoning in the 22 administrative decision itself, and may affirm a denial of benefits only for those 23 reasons upon which the ALJ actually relied. Garrison v. Colvin, 759 F.3d 995, 24 1010 (9th Cir. 2014) (citation omitted); see also Molina, 674 F.3d at 1121 (citing 25 Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196 26 (1947)) (“[courts] may not uphold an agency’s decision on a ground not actually 27 relied on by the agency”). 28 /// 4 1 Substantial evidence is “such relevant evidence as a reasonable mind might 2 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 3 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but 4 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 5 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence 6 supports a finding, a court must “‘consider the record as a whole, weighing both 7 evidence that supports and evidence that detracts from the [Commissioner’s] 8 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 9 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). A denial of benefits 10 must be upheld if the evidence could reasonably support either affirming or 11 reversing the ALJ’s decision. Robbins, 466 F.3d at 882 (a court may not 12 substitute its judgment for that of the ALJ) (citing Flaten, 44 F.3d at 1457); see 13 also Molina, 674 F.3d at 1111 (“Even when the evidence is susceptible to more 14 than one rational interpretation, we must uphold the ALJ’s findings if they are 15 supported by inferences reasonably drawn from the record.”) (citation omitted). 16 Even when an ALJ’s decision contains error, it must still be affirmed if the 17 error was harmless. Treichler v. Commissioner of Social Security Administration, 18 775 F.3d 1090, 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was 19 inconsequential to the ultimate nondisability determination; or (2) the ALJ’s path 20 may reasonably be discerned, even if the ALJ explains the ALJ’s decision with 21 less than ideal clarity. Id. (citation, quotation marks, and internal quotations 22 marks omitted). 23 A reviewing court may not make independent findings based on the 24 evidence before the ALJ to conclude that the ALJ’s error was harmless. 25 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations omitted); 26 see also Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (district court may 27 not use harmless error analysis to affirm decision on ground not invoked by ALJ) 28 (citation omitted). Where a reviewing court cannot confidently conclude that an 5 1 error was harmless, a remand for additional investigation or explanation is 2 generally appropriate. See Marsh, 792 F.3d at 1173 (remanding for additional 3 explanation where ALJ ignored treating doctor’s opinion and court not could not 4 confidently conclude ALJ’s error was harmless); Treichler, 775 F.3d at 1099-1102 5 (where agency errs in reaching decision to deny benefits and error is not harmless, 6 remand for additional investigation or explanation ordinarily appropriate). 7 IV. DISCUSSION 8 Plaintiff asserts that the ALJ erred at step five in finding that plaintiff could 9 perform the representative occupations of Assembler, Packer, and Inspector 10 (collectively “representative occupations”) based on testimony from the vocational 11 expert which, without explanation, deviated from the Dictionary of Occupational 12 Titles (“DOT”). (Plaintiff’s Motion at 4-7). The Court agrees. As the Court 13 cannot find that the ALJ’s decision is supported by substantial evidence or that 14 any error was harmless, a remand is warranted. 15 First, there is an apparent conflict between the vocational expert’s testimony 16 and the DOT’s requirements for the representative occupations. In response to a 17 series of hypothetical questions posed by the ALJ at the hearing, the vocational 18 expert opined that a hypothetical individual with the same characteristics as 19 plaintiff would be able to perform any of the three representative occupations. 20 (AR 57-60). According to the DOT, however, all of the representative 21 occupations identified by the vocational expert are at the sedentary exertional 22 level, and thus could require, among other things, “sitting most of the time” and 23 walking or standing for only “brief periods of time.” See DOT §§ 559.687-014 24 [“Ampoule Sealer”], 669.687-014 [“Dowel Inspector”], 713.687-018 [“Final 25 Assembler”]; see also 20 C.F.R. §§ 404.1567(a), 416.967(a) (“Although a 26 sedentary job is defined as one which involves sitting, a certain amount of walking 27 and standing is often necessary in carrying out job duties.”); Social Security 28 Ruling (“SSR”) 83-10 at *5 (noting, in part, that sedentary work is “performed 6 1 primarily in a seated position”). Such requirements appear to be inconsistent with 2 plaintiff’s need “to sit or stand at will. . . .” (AR 16, 57). The vocational expert 3 affirmed that her opinion was “consistent with the [DOT]” (AR 60), but the DOT 4 is silent regarding sit-stand options. See Buckner-Larkin v. Astrue, 450 Fed. 5 Appx. 626, 628 (9th Cir. 2011) (noting “the DOT does not discuss a sit-stand 6 option. . . .”). 7 While district courts in this Circuit are split on the issue, unpublished Ninth 8 Circuit cases suggest that there is an apparent conflict between the DOT and 9 vocational expert testimony where, like here, the vocational expert testifies that 10 there are jobs available at the light or sedentary exertional level for a claimant who 11 needs a sit-stand option.2 See, e.g., id. at 628-29 (noting conflict between DOT 12 and vocational expert’s testimony that representative sedentary occupations 13 “would allow for an at-will sit-stand option”); Coleman v. Astrue, 423 Fed. Appx. 14 754, 756 (9th Cir. 2011) (finding apparent conflict between DOT and VE 15 testimony that claimant could perform certain sedentary and light occupations, 16 17 2 To the extent defendant argues that “the [vocational expert’s] testimony cannot be ‘in 18 conflict’ with something that does not exist” (i.e., where the DOT is silent regarding a particular 19 limitation, such as a sit-stand option) (Defendant’s Motion at 3), this Court disagrees. See 20 21 22 23 24 25 26 27 28 generally Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006) (remanding for ALJ to address “unresolved potential inconsistency” between vocational expert (“VE”) testimony and DOT where it was unclear whether DOT’s requirements for representative jobs accounted for claimant’s limitation, and the ALJ failed to resolve such inconsistency with the VE, and as a result reviewing court was unable to determine whether VE’s testimony actually conflicted with the DOT) (cited by Massachi v. Astrue, 486 F.3d 1149, 1153-54 & n.20 (9th Cir. 2007)); Bautista v. Colvin, 2015 WL 5156427, *6 (C.D. Cal. Sept. 2, 2015) (“Where the DOT’s requirements are unclear, there is an unresolved potential inconsistency in the evidence that the ALJ has a duty to resolve and support with substantial evidence.”) (citations omitted); Wester v. Colvin, 2015 WL 4608139, *5 (C.D. Cal. July 31, 2015) (“[I]n the context of a step-five determination, when a VE relies on a functional limitation about which the DOT is silent or unclear, a conflict may exist depending upon the circumstances of the case.”) (citations omitted); Smith v. Astrue, 2010 WL 5776060, at *11 (N.D. Cal. Sept. 16, 2010) (“District courts in the Northern District of California have construed Massachi v. Astrue to mean that where an expert opines on an issue about which the DOT is silent, a conflict exists[.]”) (citation omitted). 7 1 many of which “could not accommodate [a claimant’s] need to switch between 2 sitting, standing, and walking on an hourly basis”) (citations omitted). This Court 3 is persuaded that there is an apparent conflict between the DOT requirements for 4 jobs at the sedentary exertional level and vocational expert testimony that such 5 jobs can still be performed by a claimant who requires a sit-stand option. See, 6 e.g., McCullough v. Colvin, 2016 WL 1239209, *3 (C.D. Cal. Mar. 29, 2016) 7 (“sit-stand limitation creates a deviation from the DOT that must be explained”) 8 (citation omitted); Clark v. Colvin, 2015 WL 5601406, *5 (E.D. Cal. Sept. 22, 9 2015) (weight of authority in Circuit is that absence from DOT of limitation on 10 need to be able to switch between sitting and standing or walking frequently 11 creates “apparent unresolved conflict” within the meaning of SSR 00-4p.) 12 (citations omitted); Cato v. Colvin, 2015 WL 1481646, *8 (N.D. Cal. Mar. 31, 13 2015) (noting conflict between VE testimony and DOT where claimant required, 14 but “DOT does not explicitly provide for,” a sit-stand option); Lorigo v. Colvin, 15 2014 WL 1577317, *11 (E.D. Cal. Apr. 18, 2014) (since “the DOT does not 16 discuss the availability of a sit/stand option,” and VE expressly relied on the DOT, 17 VE’s testimony that available jobs would allow for a sit-stand option 18 “automatically deviated from the DOT”) (citing Buckner-Larkin, 450 Fed. Appx. 19 at 628-29); but see Wester v. Colvin, 2015 WL 4608139, *5 (C.D. Cal. July 31, 20 2015) (noting “District courts in the Ninth Circuit are divided on whether a 21 conflict exists for limitations not addressed by the DOT, including sit/stand 22 options.”) (citing cases); King v. Colvin, 2016 WL 1255592, *5 (D. Idaho Mar. 23 28, 2016) (same; citing cases). 24 Second, since neither the vocational expert nor the ALJ acknowledged that 25 there was an apparent conflict between the vocational expert’s testimony and the 26 DOT’s requirements for the representative occupations, neither made any attempt 27 to explain or justify the deviation with respect to such occupations. (AR 19-20, 28 57-61). Accordingly, the vocational expert’s testimony, which the ALJ adopted, 8 1 could not serve as substantial evidence supporting the ALJ’s determination at step 2 five that plaintiff could perform the representative occupations. Pinto v. 3 Massanari, 249 F.3d 840, 846 (9th Cir. 2001); see also Rawlings v. Astrue, 318 4 Fed. Appx. 593, 595 (9th Cir. 2009) (“Only after determining whether the 5 vocational expert has deviated from the [DOT] and whether any deviation is 6 reasonable can an ALJ properly rely on the vocational expert’s testimony as 7 substantial evidence to support a disability determination.”) (citing Massachi v. 8 Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007)); see, e.g., Wester, 2015 WL 9 4608139, at *5 (“[W]ere a VE to testify that a claimant requiring an at-will 10 sit/stand option could perform jobs demanding six hours of standing without 11 explicitly addressing whether those jobs would accommodate her at-will sit/stand 12 requirement, that testimony might be inadequate to satisfy the Commissioner’s 13 burden, particularly if the jobs at issue were unskilled work.”) (citing SSR 83-12 14 (recognizing that although certain jobs permit an employee some choice regarding 15 sitting and standing, “[u]nskilled types of jobs are particularly structured so that a 16 person cannot ordinarily sit or stand at will”)); cf., e.g., Buckner-Larkin, 450 Fed. 17 Appx. at 628-29 (conflict between DOT and VE testimony adequately addressed 18 where VE reasonably explained that deviation “was based on his own labor market 19 surveys, experience, and research” and ALJ addressed the explanation in the 20 decision); Devore v. Commissioner of Social Security, 2015 WL 3756328, *3-*4 21 (E.D. Cal. June 16, 2015) (VE provided “reasonable explanation” for opinion that 22 10 percent of available cashier jobs could accommodate plaintiff’s need for a sit23 stand option because VE testified that “erosion percentage [was] based upon the 24 VE’s professional opinion and not based upon information in the DOT because the 25 DOT does not comment on the erosion aspect of the sit/stand option”). 26 To the extent defendant argues that plaintiff has waived judicial review of 27 this issue because plaintiff failed to raise it with the ALJ (Defendant’s Motion at 28 4) (citing, inter alia, Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999)), the 9 1 Court disagrees. First, the plaintiff had no burden of proof at step five and, of 2 course, the ALJ did not announce the step five determination until after the 3 hearing. The Court cannot conclude that plaintiff waived an issue by failing to 4 anticipate at the hearing that the ALJ would subsequently commit legal error in the 5 final decision. Second, it appears that plaintiff did generally raise the issue in his 6 request to the Appeals Council for review of the ALJ’s decision. (AR 213). 7 Third, even if plaintiff arguably did not raise the issue with the Appeals Council, 8 such failure did not constitute a waiver of the issue on judicial review. See Sims 9 v. Apfel, 530 U.S. 103, 105 (2000) (holding that Social Security claimant seeking 10 judicial review does not waive issues he fails to include in request for review by 11 Appeals Council). Finally, in Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 12 1999), cited by defendant, the claimant attempted to raise an issue for the first time 13 before the District Court that – unlike here – required consideration of new 14 evidence which had not been presented to the ALJ or the Appeals Council. See 15 Meanel, 172 F.3d at 1115; see also Silveira v. Apfel, 204 F.3d 1257, 1260 n.8 (9th 16 Cir. 2000) (considering issue raised for the first time on appeal “because it is a 17 pure question of law and the Commissioner will not be unfairly prejudiced by 18 [plaintiff’s] failure to raise the issue below”; distinguishing Meanel as “a case in 19 which the claimant rest[ed] her arguments on additional evidence presented for the 20 first time on appeal, thus depriving the Commissioner of an opportunity to weigh 21 and evaluate that evidence. . . ”) (citations omitted). 22 Finally, the Court cannot find that the ALJ’s error was harmless since 23 defendant points to no persuasive evidence in the record which supports the 24 vocational expert’s apparent deviation from the DOT or could otherwise support 25 the ALJ’s non-disability determination at Step Five. Cf. Tommasetti v. Astrue, 26 533 F.3d 1035, 1042 (9th Cir. 2008) (ALJ erred in finding that claimant could 27 return to past relevant work based on vocational expert’s testimony that deviated 28 from DOT because ALJ “did not identify what aspect of the [vocational expert’s] 10 1 experience warranted deviation from the DOT, and did not point to any evidence 2 in the record other than the [vocational expert’s] sparse testimony” to support the 3 deviation, but error was harmless in light of ALJ’s alternative finding at step five, 4 which was supported by substantial evidence, that claimant could still perform 5 other work in the national and local economies that existed in significant 6 numbers). 7 V. CONCLUSION3 8 For the foregoing reasons, the decision of the Commissioner of Social 9 Security is reversed in part, and this matter is remanded for further administrative 10 action consistent with this Opinion.4 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 DATED: May 31, 2016 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 3 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s 23 decision, except insofar as to determine that a reversal and remand for immediate payment of 24 benefits would not be appropriate. 25 26 27 28 4 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, “additional proceedings can remedy defects in the original administrative proceeding. . . .” Garrison, 759 F.3d at 1019 (citation and internal quotation marks omitted). 11
]]>
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.
