UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
May 20, 2009
DAVID KINDLE, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Jennifer T. Lum United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
On August 20, 2008, David Kindle ("plaintiff") filed a Complaint seeking review of the Social Security Administration's denial of his application for Supplemental Security Income benefits. On September 3, 2008, Michael J. Astrue, Commissioner of Social Security ("defendant"), filed a Consent to Proceed Before United States Magistrate Judge Jennifer T. Lum. On September 16, 2008, plaintiff filed a Consent to Proceed Before United States Magistrate Judge Jennifer T. Lum. Thereafter, on December 29, 2008, defendant filed an Answer to the Complaint. On May 1, 2009, the parties filed their Joint Stipulation.
The matter is now ready for decision.
On May 25, 2006, plaintiff filed an application for Supplemental Security Income benefits alleging a disability onset date of April 1, 2002, due to back problems. (See Administrative Record ["AR"] at 45, 79). The Commissioner denied plaintiff's application for benefits both initially and upon reconsideration. (AR at 43, 44, 45, 54). Thereafter, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR at 59).
On January 7, 2008, the ALJ conducted a hearing in San Bernardino, California. (See AR at 9, 16-42). Plaintiff appeared at the hearing with counsel and testified. (AR at 19-39, 40-41). Corinne Porter, a vocational expert, also testified at the hearing. (AR at 35-37, 39-40, 41-42). On February 14, 2008, the ALJ issued a decision denying benefits to plaintiff. (AR at 9-15). In his decision, the ALJ determined that plaintiff had the following severe impairments: a disorder of the cervical spine, a disorder of the lumbar spine, and a disorder of the right leg. (AR at 11). The ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or equal the criteria contained in the Commissioner's Listing of Impairments, 20 C.F.R. Section 404, Subpart P, Appendix 1. (Id.). The ALJ determined that plaintiff retained the residual functional capacity to perform light work. (AR at 11-12). The ALJ found that plaintiff retained the ability to perform his past relevant work as a telephone technician. (AR at 14-15). Accordingly, the ALJ concluded that plaintiff had not been disabled since May 25, 2006, the date he filed his application for benefits. (AR at 9, 15). The Appeals Council denied plaintiff's timely request for review of the ALJ's decision. (See AR at 1, 5).
Thereafter, plaintiff appealed to the United States District Court.
Plaintiff makes the following claims:
1. The ALJ failed to pose a complete hypothetical to the vocational expert.
2. The ALJ failed to properly consider the type, dosage, effectiveness, and side effects of plaintiff's medications.
3. The ALJ failed to properly consider plaintiff's testimony.
STANDARD OF REVIEW
Under 42 U.S.C. Section 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
A. The Sequential Evaluation
The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.
The first step is to determine whether the claimant is presently engaging in substantial gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). Second, the ALJ must determine whether the claimant has a severe impairment. Parra, 481 F.3d at 746. Third, the ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, in Appendix I of the regulations. Parra, 481 F.3d at 746. If the impediment meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). If the claimant cannot perform his or her past relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).
The claimant bears the burden of proving steps one through four, consistent with the general rule that at all times, the burden is on the claimant to establish his or her entitlement to disability insurance benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the burden shifts to the Commissioner to show that the claimant may perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
B. The Hypothetical Question Posed to the Vocational Expert
In his decision, the ALJ found that plaintiff retained the following residual functional capacity:
[Plaintiff] has the residual functional capacity to perform light work.
Specifically, [plaintiff] can occasionally lift and/or carry 20 pounds and frequently 10 pounds; he can stand/walk and or sit six hours out of an eight-hour work day; he can sit six hours out of an eight-hour work day; he can frequently climb stairs and occasionally climb ladders, use scaffolds and ropes; he can frequently balance; he can frequently bend; and he can occasionally stoop, crouch, and kneel. (AR at 11-12). The ALJ found that plaintiff had worked as a telephone technician until 1992, had performed "similar work" for a church in 2002, and that his work as a telephone technician in 2002 qualified as past work for purposes of the disability decision. (See AR at 14-15; see also AR at 34-35, 36, 37-39, 86-87, 103-04, 112).
At the January 7, 2008 hearing, the ALJ posed the following hypothetical to the vocational expert:
[L]et's assume that . . . telephone technician is past relevant work. . . . [A]ssume an individual the same age, education and work experience as [plaintiff]. The first residual functional capacity hypothetical is full range of medium except for the following postural limitations. Frequently able to climb ramps and stairs, occasionally able to climb ladders, scaffolds or ropes, frequently able to balance and bend, occasionally able to stoop, crouch and kneel. Based on these circumstances, could this person perform [plaintiff's] past relevant work? (AR at 39-40). The vocational expert testified that an individual with these limitations could perform plaintiff's past work as performed in the national economy, but not as actually performed by plaintiff. (AR at 40). The ALJ then posed a second hypothetical to the vocational expert, as follows:
[A]ssume the same postural limitations, but the exertional limitations are now light lifting, standing and walking. Could this person perform [plaintiff's] past work? (Id.). The vocational expert responded that an individual with these restrictions could also perform plaintiff's past work as generally performed in the national economy. (Id.). In his decision, the ALJ relied on the vocational expert's testimony:
In comparing [plaintiff's] residual functional capacity with the physical and mental demands of this work, the undersigned finds that [plaintiff] is able to perform work as a telephone technician, [Dictionary of Occupational Titles], 822.281-018, as generally performed in the national economy.
This may not be consistent with the Dictionary of Occupational Titles, but I have accepted the vocational expert testimony and find that it is reasonable[.] (AR at 15).
Plaintiff now argues that the ALJ failed to pose a complete hypothetical to the vocational expert at the January 7, 2008 hearing. Specifically, plaintiff contends that the ALJ failed to incorporate all of plaintiff's impairments and limitations into the hypothetical. (Joint Stipulation at 4-5, 6). Plaintiff argues that, had the vocational expert been made aware of his significant limitations, such as his limitation to standing or walking for six hours out of an eight-hour work day, she may have offered testimony indicating that plaintiff was unable to sustain employment in any labor market. (Joint Stipulation at 6).
In order for the vocational expert's testimony to constitute substantial evidence, the hypothetical must be based on medical assumptions supported by substantial evidence in the record that reflect each of the claimant's limitations. Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995); Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). The hypothetical should be "accurate, detailed and supported by the medical record." Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999); see Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) ("An ALJ must propound a hypothetical to a [vocational expert] that is based on medical assumptions supported by substantial evidence in the record that reflects all the claimant's limitations."); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) ("Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant. . . 'If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value.'") (emphasis in original)).
Here, although the ALJ's second hypothetical did not specifically state a limitation of standing or walking for six hours out of an eight-hour work day, it asked the vocational expert to determine whether an individual with the same age, education, work experience and postural limitations as plaintiff, at the light exertional level (i.e., "light lifting, standing and walking"), could perform plaintiff's past work as a telephone technician. The Dictionary of Occupational Titles ("DOT")*fn1 assigns each occupation that it chronicles a Physical Demands Strength Rating which reflects the estimated overall strength requirement of the job which are considered to be important for average, successful work performance. The DOT defines light work as follows:
Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work:
(1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.
Dictionary of Occupational Titles, Fourth Edition, 1991, Appendix C, available at 1991 WL 688702 (emphasis added). Furthermore, the Social Security Rulings provide that "the full range of light work requires standing and walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time." Social Security Ruling ("SSR")*fn2 83-10 (emphasis added); see also 20 C.F.R. §§ 404.1567(b), 416.967(b) (light work "requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls"). Thus, the ALJ's second hypothetical to the vocational expert appears to have included plaintiff's assessed limitations.
Notwithstanding this, the Court cannot determine whether the ALJ properly relied on the vocational expert's testimony as substantial evidence in determining that plaintiff could perform work as a telephone technician. At the hearing, the ALJ failed to ask the vocational expert whether her testimony conflicted with the DOT and, if so, whether there was a reasonable explanation for the conflict. (See AR at 39-40, 41-42). Pursuant to SSR 00-4p, before relying on a vocational expert's testimony to support a disability determination, an ALJ must do three things. First, at the hearing, the ALJ has an "affirmative responsibility to ask about any possible conflict between [the vocational expert's] evidence and information provided in the DOT." SSR 00-4p, 2000 WL 1898704, at *4; see id. at *2 ("At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency."). An ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job or occupation without first inquiring whether the testimony conflicts with the DOT. Massachi, 486 F.3d at 1152 ("[W]e address the question whether, in light of the requirements of SSR 00-4p, an ALJ may rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the Dictionary of Occupational Titles. We hold that an ALJ may not." (Footnote omitted)). If the ALJ does not ask the vocational expert whether her testimony conflicts with the DOT, the reviewing court cannot determine whether substantial evidence supports the ALJ's findings. Id. at 1153-54 (citing Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006)); see also Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) ("This court will not substitute its opinion for the ALJ's, who is in a better position to gauge credibility and resolve conflicts in evidence."). Second, if the vocational expert's testimony appears to conflict with the DOT, the ALJ must "obtain a reasonable explanation for the apparent conflict." SSR 00-4p, 2000 WL 1898704, at *4. Third, if the vocational expert's testimony is not consistent with the information in the DOT, the ALJ must "explain in the determination or decision how he or she resolved the conflict. . . . irrespective of how the conflict was identified." SSR 00-4p, 2000 WL 1898704, at *4; see also Massachi, 486 F.3d at 1153 (stating that "[t]he procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the [DOT]").
Here, the ALJ failed to satisfy the requirements of SSR 00-4p. In his decision, the ALJ relied on the vocational expert's testimony in finding that plaintiff was capable of performing work as a telephone technician (DOT No. 822.281-018) as generally performed in the national economy, but specifically stated that his finding "may not be consistent with the Dictionary of Occupational Titles[.]" (AR at 15). Although the ALJ identified a possible, but unspecified, conflict between his finding and the DOT, the ALJ failed to ask the vocational expert at the hearing whether her testimony conflicted with the DOT and obtain a reasonable explanation for the conflict. Moreover, the ALJ's mere statement that he "accepted the vocational expert testimony and [found] that it was reasonable" (AR at 15) did not satisfy his duty of "explain[ing] in the determination or decision how he . . . resolved the conflict."*fn3 See SSR 00-4p, 2000 WL 1898704, at *4. Thus, because the Court cannot determine whether the ALJ properly relied on the vocational expert's testimony, including her responses to the ALJ's hypothetical questions, the Court cannot determine whether substantial evidence supports the ALJ's determination that plaintiff could perform work his past relevant work as a telephone technician despite his limitations. See Massachi, 486 F.3d at 1154; see also Pinto, 249 F.3d at 846 ("In order for an ALJ to accept vocational expert testimony that contradicts the [DOT], the record must contain 'persuasive evidence to support the deviation.'" (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995))).
C. Remand is Required to Remedy Defects in the ALJ's Decision
The choice of whether to reverse and remand for further administrative proceedings, or to reverse and simply award benefits, is within the discretion of the Court. McAlister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Remand is appropriate where additional proceedings would remedy defects in the ALJ's decision, and where the record should be developed more fully. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990).
Here, the Court finds remand appropriate. The ALJ erred in failing to ask the vocational expert if her testimony conflicted with the DOT and in relying on the vocational expert's testimony without making specific findings to explain the apparent conflict between the vocational expert's testimony and the DOT. On remand, the ALJ must determine whether plaintiff can actually perform the requirements of the occupation of telephone technician despite his limitations. Before relying on a vocational expert's testimony to support his disability determination on remand, the ALJ must comply with the requirements of SSR 00-4p and elicit a reasonable explanation for any apparent conflict between the vocational expert's testimony and the DOT, and explain in his written decision how the conflict was resolved.*fn4
The Court, therefore, VACATES the decision of the Commissioner of Social Security Administration and REMANDS this action for further administrative proceedings consistent with this Memorandum Opinion and Order.
LET JUDGMENT BE ENTERED ACCORDINGLY.