Raul Flores Garcia v. Carolyn W. Colvin, No. 8:2015cv00042 - Document 23 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. IT IS THEREFORE ORDERED that Judgment be entered reversing the Commissioner's decision and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion and Order. (ec)
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Raul Flores Garcia v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 SOUTHERN DIVISION ) Case No. SACV 15-00042 (GJS) RAUL FLORES GARCIA, ) ) Plaintiff, ) MEMORANDUM OPINION AND ) ORDER v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) ) Defendant. ) ) ) 18 I. 19 20 PROCEEDINGS Plaintiff Raul Flores Garcia (“Plaintiff”) filed a complaint seeking review of 21 the Commissioner’s denial of his application for Disability Insurance Benefits. 22 The parties filed consents to proceed before the undersigned United States 23 Magistrate Judge, and a Joint Stipulation addressing disputed issues in the case. 24 The Court has taken the Joint Stipulation under submission without oral argument. 25 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 26 DECISION 27 Plaintiff asserts disability since May 19, 2010, based primarily on knee 28 impairments, a right arm impairment, and chronic pain in his knees and arm. Dockets.Justia.com 1 2 (Administrative Record (“AR”) 155, 179). After a hearing, an Administrative Law Judge (“ALJ”) applied the five-step 3 sequential evaluation process to find Plaintiff not disabled. See 20 C.F.R. § 4 404.1520(b)-(g)(1).1 At step one, the ALJ found that Plaintiff has not engaged in 5 substantial gainful employment since his alleged onset date. (AR 16). At step two, 6 the ALJ found that Plaintiff has the severe impairments of right shoulder 7 impingement syndrome, bilateral chondromalacia of the knees with patellar 8 tendonitis, and left knee medial osteoarthritis. (AR 20). At step three, the ALJ 9 found that Plaintiff does not have an impairment or combination of impairments 10 that meets or equals the requirements of any impairment listed in 20 C.F.R. Part 11 404, Subpart P, Appendix 1. (AR 22). The ALJ assessed Plaintiff with the 12 residual functional capacity (“RFC”) for medium work, including lifting or 13 carrying 50 pounds occasionally and 25 pounds frequently and occasional motion 14 with the right upper extremity. (AR 22). At step four, the ALJ found that Plaintiff 15 is capable of performing his past relevant work as a labor crew foreman, as it is 16 generally performed in the economy. (AR 25). Therefore, the ALJ concluded that 17 Plaintiff was not disabled. (AR 29). 18 The Appeals Council denied Plaintiff’s request for review. (AR 1-4). 19 On January 12, 2015, Plaintiff filed a complaint before this Court seeking 20 1 21 22 23 24 25 26 27 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 404.1520. The steps are as follows: (1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two; (2) Is the claimant’s impairment severe? If not, the claimant is found not disabled. If so, proceed to step three; (3) Does the claimant’s impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four; (4) Is the claimant capable of performing her past work? If so, the claimant is found not disabled. If not, proceed to step five; (5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled. 20 C.F.R. § 404.1520(b)-(g)(1). 28 2 1 review of the ALJ’s decision denying benefits. Plaintiff raises the following 2 arguments: (1) the ALJ erred in granting reduced or no weight to the physical 3 functional assessment of Plaintiff’s physicians; (2) the ALJ’s finding that Plaintiff 4 is not credible is not supported by clear and convincing evidence; and (3) the ALJ 5 erred in classifying Plaintiff’s past work as a labor crew foreman, and in finding 6 that Plaintiff could perform that job, as generally performed in the economy. (Joint 7 Stipulation (“JS”) at 5-14, 24-31, 39-43). The Commissioner asserts that the ALJ’s 8 decision should be affirmed. (JS at 14-23, 31-39, 43-50). III. 9 10 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), the Court reviews the Administration’s decision 11 to determine if: (1) the Administration’s findings are supported by substantial 12 evidence; and (2) the Administration used correct legal standards. See Carmickle 13 v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 14 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 16 Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and 17 quotations omitted); see also Hoopai, 499 F.3d at 1074. IV. 18 DISCUSSION 19 A. Step Four 20 Plaintiff contends the ALJ misclassified his past work as a labor crew 21 foreman, and erred in concluding that Plaintiff could perform this job, as generally 22 performed in the economy. The Court agrees. 23 At step four, the claimant has the burden of showing that he is no longer able 24 to perform his past relevant work. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th 25 Cir. 2002) (citing Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001)). The 26 ALJ must make findings of fact regarding the claimant’s RFC, the physical and 27 mental demands of the claimant’s past work, and whether the claimant can return 28 to his past relevant work “either as actually performed or as generally performed in 3 1 the national economy.” Lewis, 281 F.3d at 1083; Pinto, 249 F.3d at 845. 2 Typically, when determining how the claimant’s past relevant work was actually 3 performed, “the claimant is the primary source for vocational documentation, and 4 statements by the claimant regarding past work are generally sufficient for 5 determining the skill level; exertional demands and nonexertional demands of such 6 work.” Social Security Ruling (“SSR”) 82-62. When determining how the work is 7 generally performed, the ALJ can rely on the descriptions given by the Dictionary 8 of Occupational Titles (“DOT”) or a vocational expert. See id.; Johnson v. 9 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). However, to properly rely on the 10 DOT when the DOT’s job description requirements do not include all of the 11 claimant’s exertional and non-exertional limitations, the ALJ must expressly 12 explain in the decision why the claimant can work despite this divergence between 13 the DOT and the claimant’s limitations. Pinto, 249 F.3d at 847 (“[I]n order for an 14 ALJ to rely on a job description in the [DOT] that fails to comport with a 15 claimant’s noted limitations, the ALJ must definitively explain this deviation.” 16 (citation omitted)). If necessary, the ALJ can rely on the testimony of a vocational 17 expert to support his conclusion if the testimony is based on evidence supported by 18 the record. Johnson, 60 F.3d at 1435 (“an ALJ may rely on expert testimony which 19 contradicts the DOT, but only insofar as the record contains persuasive evidence to 20 support the deviation.”). 21 Here, Plaintiff described his past work as a “laborer” and as a “foreman.” In 22 his work history report and disability report, Plaintiff indicated that he had worked 23 as a “laborer” in construction from 1995 until he stopped working in 2010. (AR 24 156, 161-62). At the administrative hearing, Plaintiff described his past work as a 25 as a “foreman laborer,” but explained that his past jobs involved work as both a 26 construction laborer and as a foreman. (AR 44). When asked specifically about 27 his work as a foreman, Plaintiff indicated that he was required to perform a 28 substantial amount of manual labor. (AR 53). Plaintiff testified that he “was doing 4 1 everything.” (AR 53). Plaintiff stated that he did not just give orders, but provided 2 “an example of how to perform things,” performed the harder jobs himself, and 3 was asked to do work that others could not do. (AR 53). Plaintiff also stated that 4 his work was never limited to lifting 20 pounds or less. (AR 53). 5 The vocational expert acknowledged that Plaintiff actually performed his 6 construction work as a “working foreman,” at a level that was heavier than light 7 work. (AR 51, 53). Nevertheless, the vocational expert identified Plaintiff’s past 8 work as a labor crew foreman and a laborer. The labor crew foreman (labor-crew 9 supervisor, DOT # 899.131-010) is a supervisory position that requires only light 10 work. See DOT # 899.131-010 (describing the job as involving supervising and 11 coordinating the activities of other workers, and requiring an ability to exert “up to 12 20 pounds of force occasionally . . . and/or up to 10 pounds of force frequently.”). 13 The laborer position is heavy, semi-skilled work (DOT # 869.664-014). (AR 51). 14 The vocational expert testified that a person with Plaintiff’s background and RFC 15 for a range of medium work could perform the labor crew foreman job,2 but could 16 not work as a laborer. (AR at 52). Relying on the vocational expert’s testimony, 17 the ALJ determined that Plaintiff could perform the labor crew foreman position, 18 as generally performed. (AR 25, 51-52). 19 Plaintiff argues that the ALJ improperly classified his past work as a labor 20 crew foreman, because his past work actually constituted a “combination” or a 21 “composite” of two occupations. (JS at 41). Plaintiff asserts that by ALJ isolating 22 the supervisory aspects of Plaintiff’s construction job from the manual ones, the 23 ALJ classified his prior work “according to [its] least demanding function.’” (JS at 24 41 (citing Valencia v. Heckler, 751 F.2d 1082, 1086-87 (9th Cir. 1985) (ALJ erred 25 26 27 2 The VE did not specify whether the labor crew foreman position could be performed as Plaintiff actually performed it or as generally performed in the national economy. 28 5 1 by classifying claimant’s past work as a tomato sorter requiring light work, when 2 claimant’s past work as a kitchen helper and agricultural worker were classified as 3 medium work and required significant manual labor including lifting heavy 4 machinery and farm field work) and Carmickle v. Commissioner, Soc. Sec. Admin., 5 533 F.3d 1155 (9th Cir. 2007) (ALJ erred by classifying claimant’s past carpentry 6 work as purely supervisory requiring no manual labor when the claimant’s job 7 involved remodeling houses as well as supervising a crew of other carpenters)). 8 Given the substantial amount of manual labor demanded by his prior construction 9 work, Plaintiff argues that he did not have past relevant work as a labor crew 10 foreman (DOT # 899.131-010) which requires only light work, and the ALJ erred 11 by relying upon this job at step four. 12 The Commissioner asserts that the ALJ properly relied on the testimony of 13 the vocational expert in making the step four finding. (JS at 44-45). While 14 Plaintiff testified that he actually performed the job at the heavy level, the 15 Commissioner notes that the vocational expert did not alter her classification of 16 Plaintiff’s past work as a labor crew foreman, indicating that Plaintiff could still 17 perform the job as generally performed in the national economy. (JS at 44-45). 18 The Commissioner’s argument is not persuasive. 19 The vocational expert essentially conceded that there was a discrepancy 20 between the DOT’s description of the labor crew foreman position (DOT # 21 899.131-010) and Plaintiff’s description of his past work when she commented that 22 Plaintiff performed his job as a “working foreman” and at a level that was greater 23 than light. (AR 53). Even so, the vocational expert ignored the fact that Plaintiff’s 24 past job involved significant amounts of manual labor by classifying Plaintiff’s 25 position as a purely supervisory position. It was error for the ALJ to classify 26 Plaintiff’s past work “according to the least demanding function.” Valencia, 751 27 F.2d at 1086; Carmickle, 533 F.3d at 1166; see also Lee v. Astrue, No. C11-1995- 28 JCC-JPD , 2012 WL 3637637 at *5-*6 (where past relevant work consists of 6 1 “significant elements of two or more occupations” (i.e., is a “composite job”), 2 benefits may not be denied based on a claimant’s ability to do the same type of 3 work as “generally performed.”) (citing SSR 82-61 (“composite jobs have 4 significant elements of two or more occupations and, as such, have no counterpart 5 in the DOT”)); Program Operations Manual (“POMS”) § DI 25005.020(B) (“A 6 composite job will not have a DOT counterpart, so do not evaluate it at the part of 7 step 4 considering work “as generally performed in the national economy.”). Thus, 8 the ALJ’s reliance on the vocational expert’s testimony to conclude that Plaintiff 9 could perform his past relevant work as it is typically performed was not supported 10 by substantial evidence.3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Further, even if the labor crew foreman position did qualify as a composite job, the demands of this position appear to be inconsistent with Plaintiff’s language abilities. According to the DOT, the labor crew foreman position requires Language Level 3 abilities: READING: Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work. WRITING: Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech. SPEAKING: Speak before an audience with poise, voice control, and confidence, using correct English and a well-modulated voice. DOT # 899.131-010. At the hearing, Plaintiff testified with the assistance of an interpreter. Plaintiff explained that he understands some English, but cannot speak English fluently or read or write in English. (AR 23, 45). Although the ALJ noted Plaintiff’s limited language skills, he did not make any specific findings in the RFC assessment regarding Plaintiff’s ability to communicate in English nor did he include any such limitations in the hypothetical question to the VE. (AR 23, 51). Consequently, the VE did not address the impact of Plaintiff’s inability to communicate in English on his ability to perform the labor crew foreman position and the ALJ did not make any findings in this regard. The record is inadequate for the Court to determine whether there was a reasonable basis for this apparent conflict with the DOT. As the Court cannot find that the ALJ’s error was harmless, a remand for further proceedings is warranted. See, e.g., Pinto, 249 F.3d 7 CONCLUSION AND ORDER 1 2 IT IS THEREFORE ORDERED that Judgment be entered reversing the 3 Commissioner’s decision and remanding this matter for further administrative 4 proceedings consistent with this Memorandum Opinion and Order.4 5 DATED: December 08, 2015 6 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 at 846 (remand warranted where ALJ found claimant not disabled at step four based “largely” on inadequate vocational expert testimony and ALJ otherwise “made very few findings”). 4 The Court has not reached any other issue raised by Plaintiff except as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 28 8
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