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Grigoryan v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


March 25, 2009

ANAIDA GRIGORYAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on November 5, 2007, seeking review of the Commissioner's denial of her application for Supplemental Security Income. The parties filed Consents to proceed before the undersigned Magistrate Judge on November 28, 2007, and February 19, 2008. Pursuant to the Court's Order, the parties filed a Joint Stipulation on August 4, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on July 5, 1954. [Administrative Record ("AR") at 31, 57, 84.] She has at least a high school equivalent education*fn1 [AR at 82, 288], and no past relevant work experience. [AR at 77, 289-91.]

On January 20, 2005, plaintiff protectively filed her application for Supplemental Security Income payments, alleging that she has been unable to work since August 1, 2004, due to high blood pressure, anemia, pain in veins, numbness in hands, dizziness, and back pain. [AR at 57, 76, 84.] After her application was denied initially,*fn2 plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 36, 42-44, 50-64.] A hearing was held on June 9, 2006, at which time plaintiff appeared with a non-attorney representative and testified, through an interpreter, on her own behalf. [AR at 282-312.] A vocational expert also testified. [AR at 306-08, 310-11.] On December 28, 2006, the ALJ determined that plaintiff was not disabled. [AR at 15-28.] Plaintiff requested review of the hearing decision. [AR at 13.] When the Appeals Council denied plaintiff's request for review on September 27, 2007, the ALJ's decision became the final decision of the Commissioner. [AR at 6-9.] This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV. THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since the alleged onset date of the disability. [AR at 20.] At step two, the ALJ concluded that plaintiff has the following "severe" combination of impairments: "right posterior neck mass (status post excisional biopsy and pathology report of invasive adenocarcinoma consistent with the breast as the primary site but negative breast workup), hypertension, anemia, varicose veins, thrombophlebitis, obesity, and a depressive disorder, not otherwise specified." [Id. (citations omitted).] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [AR at 22.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn3 to "perform the full range of medium work." [AR at 22.] Specifically, the ALJ determined that plaintiff is able to "lift, carry, push, and/or pull 50 pounds occasionally and 25 pounds frequently, stand and/or walk for six hours, and sit for six hours in an eight-hour workday with normal breaks[,] . . . [and] climb, balance, stoop, kneel, crouch, and crawl frequently." [AR at 22.] At step four, the ALJ concluded that plaintiff had no past relevant work. [AR at 27.] At step five, the ALJ found, based on the vocational expert's testimony and use of Medical-Vocational Rule 203.21 as a framework, that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." [Id.] Accordingly, the ALJ determined that plaintiff is not disabled. [AR at 28.]

V. THE ALJ'S DECISION

Plaintiff contends that the ALJ failed to: (1) properly consider plaintiff's malignant neoplastic disease as a basis of disability; (2) adopt the non-exertional limitations of the State Agency evaluator; (3) resolve the inconsistency between the vocational expert's testimony and the Dictionary of Occupational Titles ("DOT"); and (4) pose a complete hypothetical to the vocational expert. Joint Stipulation ("Joint Stip.") at 3. As set forth below, the Court agrees with plaintiff, in part, and remands the matter for further proceedings.

A. THE LISTING DETERMINATION

Plaintiff argues that the ALJ failed to consider plaintiff's malignant neoplastic disease at step three of the evaluation process. Joint Stip. at 5-6, 8-9.

If a claimant has an impairment or combination of impairments that meets or equals a condition outlined in the Listing, then the claimant is presumed disabled at step three of the evaluation process, and the ALJ need not make any specific findings as to her ability to perform her past relevant work or any other jobs. See 20 C.F.R. §§ 404.1520(d), 416.920(d). "An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment. A boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)).

The Listing contains descriptions of various physical and mental illnesses and abnormalities, which are categorized by the body system they affect. See 20 C.F.R. §§ 404.1525(a); 416.925(a) (the Listing "describes for each of the major body systems impairments that [are] consider[ed] to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience"). Each body system section of the Listing includes an introduction with information relevant to the use of the listings in that section, followed by the specific listings. See 20 C.F.R. §§ 404.1525(c)(1)-(3); 416.925(c)(1)-(3). "Within each listing, [the Social Secuirty Administration] specif[ies] the objective medical and other findings needed to satisfy the criteria of that listing." Id. at §§ 404.1525(c)(3); 416.925(c)(3). In order for a claimant's impairment or combination of impairments to meet the requirements of a listing, all of the criteria of that listing, including any relevant criteria in the introduction, and the duration requirement, must be satisfied. See id.; see also Social Security Rulings ("SSR")*fn4 83-19 ("[a]n impairment 'meets' a listed condition in the Listing of Impairments only when it manifests the specific findings described in the set of medical criteria for that listed impairment."). A claimant's "impairment(s) cannot meet the criteria of a listing based only on a diagnosis." 20 C.F.R. §§ 404.1525(d), 416.925(d); see Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) ("[t]he mere diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding of disability."). "By comparing the clinical signs, symptoms, and laboratory findings from the evidence of record with those in the listing, the [ALJ] can usually readily determine whether the listing is met." SSR 83-19. To equal a listed impairment, a claimant's impairment must "at least equal in severity and duration" the criteria of a listed impairment. See 20 C.F.R. §§ 404.1526(a), 416.926(a); see also 83-19 (a claimant's impairment is "equivalent" to a listing only if her symptoms, signs, and laboratory findings are "at least equivalent in severity" to the criteria for the listed impairment most like the claimant's impairment).

Here, the ALJ evaluated the evidence relevant to plaintiff's malignant neoplastic disease and concluded that "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments . . .". [AR at 22, 24, 26.] While an ALJ must sufficiently evaluate evidence relevant to the listed impairment analysis, he or she need not state why plaintiff failed to satisfy every criteria of the Listing. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) ("[i]t is unnecessary to require the [ALJ], as a matter of law, to state why a claimant failed to satisfy every different section of the listing of impairments."); see also, e.g., Hammond v. Astrue, 2008 WL 276360, at *30 (D. Ariz. Jan. 29, 2008) ("the ALJ is not required to state why a claimant fails to satisfy every criteria of the listing if [he] adequately summarize[s] and evaluate[s] the evidence") (citation omitted). Contrary to plaintiff's assertions (see Joint Stip. at 3-5, 8-9), the ALJ's discussion of the evidence includes evidence that a reasonable person might find adequate to support the ALJ's decision that plaintiff's impairments or combination of impairments do not meet or equal any of the impairments in the Listing. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

Malignant neoplastic diseases are evaluated in the Listing under section 13.00. See 20 C.F.R., Part 404, Subpart P, Appendix 1, Section 13.00. In evaluating malignant neoplastic diseases, the Social Security Administration ("SSA") considers factors such as the: (1) origin of the malignancy; (2) extent of involvement; (3) duration, frequency, and response to antineoplastic therapy, i.e., surgery, irradiation, chemotherapy, hormones, immunotherapy, or bone marrow or stem cell transplantation; and (4) effects of any post-therapeutic residuals. 20 C.F.R., Part 404, Subpart P, Appendix 1, Section 13.00(B). Generally, the SSA evaluates both the operative note and pathology report for operative procedures. Id. at § 13.00(D)(2). "In many cases, malignancies meet listing criteria only if the therapy does not achieve the intended effect: the malignancy persists, progresses, or recurs despite treatment." Id. at § 13.00(G)(1). Because therapy and its toxicity may vary widely, each case is considered on an individual basis. Id. at § 13.00(G)(2)(a). With respect to therapy, the SSA considers the following: drugs given, dosage, frequency of drug administration, plans for continued drug administration, extent of surgery, schedule and fields of radiation therapy, and complications or adverse effects of therapy, including, among other things, persistent weakness and neurological complications. Id. at § 13.00(G)(2)(a).

Although the ALJ did not specifically cite the listing under which he considered plaintiff's malignant neoplastic disease, the ALJ adequately evaluated the evidence relevant to such a consideration. [AR at 22, 24, 26.] Specifically, the ALJ in the decision found, based on the medical evidence, that "[w]hile [plaintiff] has cancer, the primary site has not been identified," and "[a] work-up was negative for metastases or breast cancer." [AR at 26, 195-244, 251-53.] The ALJ noted oncologist Dr. Mark Goldstein's finding that "'[plaintiff] may well go months if not even a couple of years before she has significant disease elsewhere in her body even without active therapy.'" [AR at 26, 253.] He also noted that plaintiff "has no residuals from removal of the mass from her neck." [AR at 26, 163, 196, 200-04, 254-57.] As such, the ALJ properly evaluated plaintiff's neoplastic disease, and his conclusion that she does not meet or equal a listed impairment is supported by substantial evidence in the record. Remand is not warranted on this issue.

B. STATE AGENCY PHYSICIAN

Plaintiff claims that the ALJ's failure to adopt the non-exertional limitations of the State Agency evaluator was error. Joint Stip. at 9. Specifically, plaintiff asserts that the ALJ failed to explain why he ultimately rejected the State Agency evaluator's opinion that plaintiff needs to avoid even moderate exposure to noise and vibration. Joint Stip. at 9-10.

Although an ALJ is not bound by the findings made by State Agency medical consultants, the State Agency physicians are considered "highly qualified physicians who are also experts in Social Security disability evaluation." See 20 C.F.R. §§ 404.1597(f)(2)(i), 416.927(f)(2)(i). Therefore, an ALJ must consider the findings of a State Agency medical consultant as opinion evidence. See id. "When the ALJ considers the findings of a State Agency medical consultant, the ALJ evaluates the findings using factors such as medical specialty and expertise in social security rules, supporting evidence in the case record, supporting explanations provided by the physician, and any other factors relevant to the weighing of the opinions." See Wimberly v. Astrue, 2008 WL 4381617, at *5 (C.D. Cal. Sept. 25, 2008) (citation omitted); see also 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii). As such, an ALJ is required to consider and evaluate any assessment of an individual's residual functional capacity by a State Agency physician. See SSR 96-6p. Where the ALJ rejects the opinion of a nonexamining State Agency medical consultant, the ALJ must provide reasons for doing so. See SSR 96-6p (ALJ "must explain weight given" to the opinion a State Agency medical consultant); see also Andrews, 53 F.3d at 1039 ("[G]iving the examining physician's opinion more weight than the nonexamining expert's opinion does not mean that the opinions of nonexamining sources and medical advisors are entitled to no weight.") (emphasis in original); SSR 96-6p ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").

On March 8, 2005, a State Agency internist*fn5 completed a Physical Residual Functional Capacity Assessment form, in which she opined that plaintiff could, among other things, lift and/or carry 50 pounds on an occasional basis and 25 pounds on a frequent basis, stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday, sit (with normal breaks) for a total of about 6 hours in an 8-hour workday, and climb, balance, stoop, kneel, crouch, and crawl on a frequent basis. [AR at 170-71.] As for environmental restrictions, the State Agency internist found that plaintiff needs to "avoid even moderate exposure" to noise and vibration because such exposure "[c]an trigger tension headaches." [AR at 173.] In so finding, she noted plaintiff's allegations of headaches, dizziness, anemia, and varicose veins, as well as the treating physician's findings of headaches and dizziness provoked by noise and tension. [AR at 174.]

In the decision, the ALJ gave the "greatest weight" to the opinion of consultative internist Dr. Homayoun Saeid, who found that plaintiff could perform the full range of medium work with frequent postural activities. [AR at 25-26.] The ALJ noted the State Agency internist's opinion that plaintiff was capable of performing work at the medium level of exertion with frequent postural activities and avoidance of even moderate exposure to noise and vibration. [AR at 25.] The ALJ found the State Agency internist's opinion "essentially consistent" with the opinion of Dr. Saeid, and concluded that even if he "were to adopt the opinion of the State Agency internist, the outcome in this case would remain the same." [Id.]

The ALJ's conclusion that the opinions of the State Agency internist and Dr. Saeid are "essentially consistent" is misleading, as there is a material difference between the two opinions with respect to plaintiff's environmental limitations. [AR at 25.] The State Agency internist found that plaintiff needs to avoid even moderate exposure to noise and vibration, while Dr. Saeid found that plaintiff has no environmental limitations whatsoever. [Compare AR at 173, with AR at 271.] In his RFC determination, the ALJ found plaintiff capable of performing the full range of medium work, but did not restrict plaintiff from working in environments with even moderate exposure to noise and vibration. [AR at 22.] The ALJ is not permitted to selectively choose from an opinion to support the RFC determination. See, e.g., Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (error for an ALJ to ignore competent evidence in the record in order to justify his conclusion). The ALJ's failure to include the environmental restrictions in the RFC assessment resulted in an implicit rejection of that portion of the State Agency internist's opinion. See, e.g., Smith v. Massanari, 139 F. Supp. 2d 1128, 1133 (C.D. Cal. 2001) (reliance on one physician's opinion in making a finding, which differs from that of another physician, is an implicit rejection of the latter). Although the ALJ noted the State Agency internist's opinion that plaintiff is "capable of performing work at the medium level of exertion with frequent postural activities and avoidance of even moderate exposure to noise and vibration" [AR at 25], he articulated no reason for ultimately excluding her opinion as to plaintiff's environmental limitations from the RFC assessment.*fn6 See SSR 96-8p (the RFC assessment must always consider and address medical source opinions, and if the assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted); see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981) ("Since it is apparent that the ALJ cannot reject evidence for no reason or the wrong reason [citation omitted], an explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper."). The ALJ erred by failing to properly consider the State Agency internist's opinion that plaintiff needs to avoid even moderate exposure to noise and vibration in determining plaintiff's RFC.*fn7

C. ABILITY TO PERFORM OTHER WORK

Plaintiff contends that the ALJ's reliance on the jobs cited by the vocational expert to find that plaintiff could perform other work in the national economy warrants remand, as the vocational expert's testimony was inconsistent with the DOT. Joint Stip. at 14-15. Plaintiff also argues that the ALJ posed an incomplete hypothetical question to the vocational expert, which resulted in "erroneous testimony." Joint Stip. at 16-17.

At step five of the sequential evaluation process, the burden shifts to the Commissioner to prove that, based on the claimant's RFC, age, education, and past work experience, she can perform some type of substantial gainful activity that exists in "significant numbers" in the national economy. See Smolen, 80 F.3d at 1291; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 146 n.6 (1987) ("It is true . . . that the Secretary bears the burden of proof at step five, which determines whether the claimant is able to perform work available in the national economy."). An ALJ may apply the grids to determine whether a claimant can make a successful adjustment to other work. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985) ("[I]n determining whether a claimant can do substantial gainful work, the ALJ may apply the Secretary's medical-vocational guidelines . . . ."). But "if the grids fail to describe accurately a claimant's particular limitations, the [ALJ] may not rely upon the grids alone to show availability of jobs for the claimant." Gonzalez v. Secretary of Health and Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986) (citations and quotations omitted) (emphasis in original); see Jones, 760 F.2d at 998 (the ALJ should rely on the grids "only when the grids accurately and completely describe the claimant's abilities and limitations"). Generally, an ALJ should obtain a vocational expert's opinion where the plaintiff either suffers from only non-exertional impairments or suffers from a combination of exertional and non-exertional impairments. See Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989) ("[W]here a claimant suffers solely from a non-exertional impairment, the grids do not resolve the disability question; other testimony is required. In cases where the claimant suffers from both exertional and non-exertional impairments, the situation is more complicated.").

In this case, the ALJ found that "[b]ased on a residual functional capacity for the full range of medium work, considering [plaintiff's] age, education, and work experience, a finding of 'not disabled' is directed by Medical-Vocational rule 203.21." [AR at 27-28.] The ALJ further found that the vocational expert's testimony "corroborated rule 203.21." [AR at 28.] During the June 9, 2006, hearing, the ALJ posed the following hypothetical, at issue here, to the vocational expert:

[I]f I found that the claimant had the residual functional capacity given by the State Agency at [AR at 169-76] and found that the claimant could lift 50 pounds occasionally, 25 pounds frequently. Stand and/or walk about six hours. And had to avoid noise, even moderate exposure to noise and vibration. Would there be any other work that an individual with this claimant's vocational profile could do? [AR at 307.] The vocational expert testified that an individual with the vocational profile described by the ALJ would be able to perform the jobs of hand packager and stubber. [AR at 307-08, 310-11.] Based on this testimony, the ALJ concluded that plaintiff could perform a significant number of jobs in the national economy. [AR at 27-28.] In so concluding, the ALJ stated that "[g]iven that the claimant has a less restrictive residual functional capacity than that given to the vocational expert at the hearing, the claimant would be able to perform the jobs mentioned by the vocational expert in addition to other jobs."*fn8 [AR at 28.] Plaintiff's arguments relevant to the vocational expert's testimony are twofold, and will be discussed in turn below.

1. Hand Packager

Plaintiff argues that according to the DOT, the job of hand packager (DOT No. 920.587-018), cited by the vocational expert as a job that an individual with plaintiff's limitations could perform, requires plaintiff to exceed the residual functional capacity set forth in the hypothetical question. Joint Stip. at 14. Specifically, plaintiff asserts that the job of hand packager "cannot be performed by an individual limited to less than moderate levels of noise and vibration." Id. Plaintiff further argues that an ALJ cannot rely on the testimony of a vocational expert that deviates from the DOT unless the record contains persuasive evidence to support the deviation. Id.

"[T]he best source for how a job is generally performed is usually the Dictionary of Occupational Titles. In order for an ALJ to accept vocational expert testimony that contradicts the Dictionary of Occupational Titles, the record must contain 'persuasive evidence to support the deviation.'" See Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001) (citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). When the ALJ's decision contradicts the DOT, the ALJ must offer an explanation regarding why he or she is rejecting the DOT's description. See Johnson, 60 F.3d at 1434, 1435 n.7 ("[i]n this case the ALJ's explanation is satisfactory because the ALJ made findings of fact that support a deviation from the DOT. The ALJ noted that the vocational expert described the characteristics and requirements of jobs in the local area."); see also Terry v. Sullivan, 903 F.2d 1273, 1278 (9th Cir. 1990).

Here, the vocational expert's testimony that an individual with plaintiff's vocational profile could perform the job of hand packager is at odds with the description in the DOT concerning the hand packager job. Although the hand packager job is classified as unskilled with a medium exertional level, the noise classification is "Level 4 - Loud." See DOT No. 920.587-018 (entitled "Packager, Hand"). Thus, the noise level classification conflicts with the vocational expert's testimony that an individual with a restriction to even moderate exposure to noise and vibration could perform the job of hand packager.*fn9 To the extent a conflict exists between the vocational expert's testimony and the DOT, there must be persuasive evidence supporting any decision to rely on the vocational expert's opinion rather than on the information provided in the DOT. See Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (where the vocational expert's testimony differs from the DOT, he must provide a persuasive rationale supported by the evidence to justify the departure). Neither the vocational expert nor the ALJ pointed to any persuasive evidence, or provided any explanation, to support the departure from the DOT, i.e., no support was offered by either the vocational expert or the ALJ as to how an individual who must avoid even moderate exposure to noise and vibration could perform the job of hand packager cited by the vocational expert in light of the noise level classification of "loud."*fn10 No persuasive evidence was presented to support the disparity between the vocational expert's testimony and the DOT. See Heacock v. Astrue, 2008 WL 5233163, at *4 (C.D. Cal. Dec. 12, 2008) (although the vocational expert responded that her testimony was consistent with the DOT, the bench assembler job cited by the vocational expert appeared to be inconsistent with the claimant's RFC and no explanation was provided to support her testimony that the claimant could perform "'some work as a bench assembler'"); cf. Johnson, 60 F.3d at 1435 (ALJ properly relied on vocational expert testimony which deviated from the DOT where "there was persuasive testimony of available job categories in the local rather than the national market, and testimony matching the specific requirements of a designated occupation with the specific abilities and limitations of the claimant."). Because the record does not contain persuasive evidence to support the deviation between the vocational expert's testimony and the DOT with respect to the job of hand packager, the ALJ improperly relied on the testimony of the vocational expert.

2. Stubber

Plaintiff argues that the ALJ posed an incomplete hypothetical to the vocational expert by failing to incorporate the finding that plaintiff was unable to communicate in English. Joint Stip. at 16-17. Specifically, plaintiff asserts that the job of stubber cannot be performed by an individual who is unable to communicate in English. Joint Stip. at 16.

An ALJ can pose hypothetical questions to the vocational expert to determine whether a claimant can engage in gainful employment. See Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001). Hypothetical questions posed to a vocational expert must set forth all of the limitations and restrictions of a particular claimant. Andrews, 53 F.3d at 1043; Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). The vocational expert's opinion about the jobs a claimant can still perform has no evidentiary value if the hypothetical does not contain all the impairments supported by the record. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); see also Nguyen v. Chater, 100 F.3d 1462, 1466 n.3 (9th Cir. 1996) ("Because the hypothetical was incomplete, it does not constitute competent evidence to support a finding that claimant could do the jobs set forth by the vocational expert.").

Here, the ALJ determined that plaintiff "is not able to communicate in English." [AR at 27.] Despite the ALJ's finding in this regard, neither the ALJ nor the vocational expert included plaintiff's inability to communicate in English in describing plaintiff's vocational profile. [AR at 306-07.] Further, the ALJ offered no explanation for his failure to include plaintiff's English language limitation in the hypothetical question posed to the vocational expert.*fn11 According to 20 C.F.R. §§ 404.1564(b)(5) and 416.964(b)(5), "[b]ecause English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language." 20 C.F.R. §§ 404.1564(b)(5), 416.964(b)(5) (the Social Security Administration "consider[s] a person's ability to communicate in English when . . . evaluat[ing] what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in."); see Pinto, 249 F.3d at 846 ("[t]he ability to communicate is an important skill to be considered when determining what jobs are available to a claimant.").

Defendant contends that "even if the ALJ found that [p]laintiff could not speak English, the ALJ could still make a determination of non-disability based on the Grids because the ALJ was not required to use a vocational expert where he found no significant non-exertional limitations." This assertion is not well taken given the ALJ's conclusion that the outcome of this case would remain the same even if he adopted the non-exertional, environmental limitations found by the State Agency internist. [AR at 25.] As discussed, the adoption of the State Agency internist's opinion would have resulted in a finding that plaintiff is capable of performing medium work with frequent postural activities and avoidance of even moderate exposure to noise and vibration. [AR at 169-76.] Such a finding, however, does not exactly coincide with the ALJ's finding that plaintiff has the RFC to perform the full range of medium work [AR at 22, 25], and may have made reliance on the grids alone inappropriate. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (reliance on the grids alone to show the availability of jobs for a claimant is only proper when the grids "accurately and completely describe the claimant's abilities'"); see also Jones, 760 F.2d at 998 ("[t]he very fact that the ALJ chose to call a vocational expert indicates his implicit assumption that [plaintiff's] claim could not be decided by the grids alone."); Tackett v. Apfel, 180 F.3d 1094, 1101-02 (9th Cir. 1999) (significant non-exertional impairments affecting a claimant's residual functional capacity may make reliance on the grids inappropriate); Cooper, 880 F.2d at 1156 n.10 ("[i]f [a claimant] is not capable of doing the full range of medium work because of a non-exertional impairment, then the ALJ would not be allowed to rely solely on the grids to direct a finding of not disabled."); 20 C.F.R., Part 404, Subpart P, Appendix 2 (the rules may not be fully applicable where the nature of an individual's impairment results in environmental restrictions, i.e., "restrictions which result in inability to tolerate some physical feature(s) of work settings that occur in certain industries or types of work"); Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984) ("[b]y their own terms, the Appendix 2 Guidelines are 'not fully applicable' and are at best a 'framework' for reaching a decision when non-exertional, environmental limitations restrict a claimant's ability to tolerate certain work settings."). Thus, the ALJ erred by failing to include his finding that plaintiff "is not able to communicate in English" in the hypothetical question posed to the vocational expert.

In light of the ALJ's failure to properly consider the State Agency internist's opinion, as well as his failure to properly assess plaintiff's capacity to perform other work given his conclusions in the decision, remand is warranted.

VI. REMAND FOR FURTHER PROCEEDINGS

As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d at 1497. In this case, remand is appropriate to properly consider the opinion of the State Agency internist, as well as plaintiff's ability to perform other work. The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.

Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.

This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included or submitted to any online service such as Westlaw or Lexis.


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