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Mkhitaryan v. Astrue

April 27, 2010


The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge



Plaintiff Jemma Mkhitaryan filed a Complaint on September 21, 2009 seeking review of the Decision of the Commissioner of the Social Security Administration denying Supplemental Security Income (SSI). Defendant filed an answer on January 4, 2010. The parties consented to proceed before United States Magistrate Judge Stephen J. Hillman. Plaintiff filed a brief in support of the Complaint on February 1, 2010. Defendant filed an opposition brief on March 19, 2010. Plaintiff subsequently filed a Reply.


On May 31, 2006, plaintiff filed an application for SSI alleging an inability to work commencing January 1, 2005. The Social Security Administration denied plaintiff's application initially on November 9, 2006. Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which occurred on February 17, 2009.

In a written opinion issued on March 20, 2009, the ALJ found that plaintiff suffered from several severe impairments, including epilepsy, bursitis of the shoulders, and lumbar spondylosis, but that these impairments did not meet or medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Administrative Record [AR] 11). The ALJ found that plaintiff retained a residual functional capacity (RFC) permitting medium work with an ability to lift/carry 50 pounds occasionally and 25 pounds frequently, stand/walk 6 hours in an 8-hour workday, and sit 6 hours in an 8-hour workday. (AR 13). Additionally, the ALJ found that plaintiff was precluded from driving, working at unprotected heights or around dangerous machinery, and reaching above shoulder level. Id. On the basis of plaintiff's RFC and vocational expert (VE) testimony, the ALJ found plaintiff unable to perform her past relevant work as a Laborer (DOT 922.687-058), but able perform jobs existing in significant numbers in the national economy, namely the jobs of Assembler (DOT 709.684-014), Packager (DOT 920.587-018), and Food Service Worker (DOT 319.677-014) (the "other jobs"). (AR 16-17). Although plaintiff required the assistance of an Armenian interpreter during the ALJ hearing, the ALJ found plaintiff able to communicate in English. (AR 9, 16). Plaintiff filed a request for Appeals Council review on April 8, 2009, which was denied on June 25, 2009. This action followed.

Plaintiff asserts that the ALJ failed to adequately explain discrepancies between the VE's testimony and plaintiff's RFC with respect to plaintiff's ability to reach; and failed to provide substantial evidence to find plaintiff able to communicate in English. The parties stipulate that the ALJ accurately summarized the testimony and medical evidence. For the reasons discussed below, this Court finds that plaintiff's contentions have merit.


Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine if: (1) the ALJ's findings are supported by substantial evidence; and (2) the ALJ used proper legal standards. Delorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971), but "less than a preponderance," Desroisiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). This court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

It is the duty of this court to review the record as a whole and to consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). The court is required to uphold the decision of the ALJ where evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The court has the authority to affirm, modify, or reverse the ALJ's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). Remand is appropriate where additional proceedings would remedy defects in the ALJ's decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).


In determining whether appropriate jobs exist for the claimant, the ALJ generally will refer to the Dictionary of Occupational Titles (DOT). Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). The ALJ may rely on VE testimony that contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation. Light, supra; Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007), citing Social Security Ruling [SSR] 00-4p. Only after determining whether the VE has deviated from the DOT (and whether any deviation is reasonable) can an ALJ properly rely on the VE's testimony as substantial evidence to support a disability determination. Massachi, supra at 1153-54. Evidence sufficient to support a deviation from the DOT may be either specific findings of fact regarding plaintiff's ability to perform particular jobs, or inferences drawn from the context of the expert's testimony. See Light, supra at 1435 n.7 (ALJ provided sufficient support for deviation by noting that the VE described characteristics and requirements of jobs in the local area consistent with claimant's RFC); Terry v. Sullivan, 903 F.2d 1273, 1279 (9th Cir. 1990) (ALJ may infer support for deviation where VE's understanding of applicable legal standards is clear from context).

A person's inability to read or write in English is considered the functional equivalent of illiteracy within the meaning of the Social Security Administration, even if that person may be literate in another language. See Pinto v. Massanari, 249 F.3d 840,846 n.4 (9th Cir. 2001); Chavez v. Dept. of Health and Human Servs., 103 F.3d 849, 852-53 (9th Cir. 1996). While an illiterate person is not per se disabled, Pinto, supra at 847, an ALJ must consider how a person's literacy level affects work-related functions-such understanding and following instructions, communicating in the workplace, and responding appropriately to supervision-when determining whether a person has the RFC to perform other jobs in the national economy at step five in the sequential evaluation ...

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