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November 30, 2010


The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge



On April 13, 2010, plaintiff Florentina Castillo ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; April 26, 2010 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum and Opinion and Order of Remand because the Administrative Law Judge ("ALJ") failed to consider the impact of plaintiff's limited English language ability on her ability to perform her past relevant work.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION On December 5, 2005, plaintiff filed an application for Disability Insurance Benefits. (Administrative Record ("AR") 91-65). Plaintiff asserted that she became disabled on November 29, 2001, due to pain in her left arm and back, depression, and insomnia. (AR 91, 104). The ALJ examined the medical record and heard testimony from plaintiff, who was represented by counsel and testified through an interpreter, on June 23, 2008. (AR 24-46).

On September 22, 2008, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 19-23). Specifically, the ALJ found:

(1) plaintiff suffered from the severe impairments of degenerative joint disease of the lumbosacral spine, obesity, hypertension, chronic headaches, and visual acuity impairments (AR 20); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 22); (3) plaintiff retained the residual functional capacity to perform light work with certain limitations (AR 22); and (4) plaintiff is capable of performing her *fn1 past relevant work as a plumbing hardware assembler (AR 22).

The Appeals Council denied plaintiff's application for review. (AR 10-13).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54 (citing Tackett, 180 F.3d at 1098); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).


A. Step Four Determination

Plaintiff argues that the ALJ committed legal error in determining that plaintiff can perform her past relevant work as a plumbing hardware assembler. (Plaintiff's Motion at 4-9). The Court agrees.

1. Pertinent Law

At step four of the sequential evaluation process, the Administration may deny benefits when the claimant can perform the claimant's past relevant work as "actually performed," or as "generally" performed. Pinto v. Massanari, 249 F.3d 840, 845 (2001). ALJs routinely rely on the Dictionary of Occupational Titles ("DOT") in determining the skill level of a claimant's past work. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 404.1566(d)(1) (DOT is source of reliable job information). The DOT is the presumptive authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). "[I]n order for an ALJ to rely on a job description in the [DOT] that fails to comport with a claimant's noted limitations, the ALJ must definitively explain this deviation." Pinto, 249 F.3d at 847 (citing Johnson, 60 F.3d at 1435).

Although the claimant has the burden of proving an inability to perform her past relevant work, "the ALJ still has a duty to make the requisite factual findings to support his conclusion." Id. at 844. To determine whether a claimant has the residual capacity to perform her past relevant work, the ALJ must ascertain the demands of the claimant's former work and then compare the demands with her present capacity. Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain the following specific findings of fact:

(1) a finding of fact as to the individual's residual functional capacity; (2) a finding of fact as to the physical and mental demands of the past job; and (3) a finding of fact that the individual's residual functional capacity would permit a return to her past job or occupation. Social Security Regulation ("SSR") 82-62.*fn2

2. Analysis

Plaintiff contends that the ALJ erred in failing to consider plaintiff's alleged illiteracy at step four, and notes that the DOT provides that the occupation of plumbing hardware assembler requires the ability to speak, read and write in English. (Plaintiff's Motion at 8-9) (citing DOT § 706.684-086). On the record before it, the Court is unable to determine whether the ALJ's step four conclusion is supported by substantial evidence.

The ALJ did not specify whether her conclusion that plaintiff could perform her past relevant work as a plumbing hardware assembler addressed the work as actually or generally performed. (AR 22-23). There is little evidence in the record regarding plaintiff's work as actually performed. However, the evidence suggests that the demands of plaintiff's actual work may exceed her current residual functional capacity. For example, plaintiff wrote that she frequently lifted weights of twenty-five pounds and "[h]andle[d], grab[bed] or grasp[ed] big objects" eight hours per day. (AR 105-06). These requirements appear to exceed her capacity to perform "a limited range of light work" and to handle only frequently. (AR 22). The Court is therefore unable to affirm the ALJ's decision on the basis that plaintiff could perform her past relevant work as she actually performed it.

Plaintiff's past relevant work as generally performed requires "Level 2" language abilities. DOT § 706.684-085. These abilities include a "[p]assive vocabulary of 5,000-6,000 words," "[r]ead[ing] at [a] rate of 190-215 words per minute," "[w]rit[ing] compound and complex sentences," and "[s]peak[ing] clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses." Id. These requirements appear to exceed plaintiff's English language abilities. Plaintiff wrote that she could not "speak and understand English" and that her primary language is Spanish. (AR 103). The examining psychiatrist noted that plaintiff "was unable to speak English fluently" and conducted his interview through an interpreter. (AR 194). Plaintiff testified through an interpreter at the hearing. (AR 26). Responding to questions by the ALJ, plaintiff testified that she could speak "[a] little" English, possibly including the ability to respond to "small questions" but not "long questions," and that she could not read any words in English, with the possible exception of "street names." (AR 28). The ALJ noted in her decision that plaintiff "communicated through the agency of a Spanish interpreter" but did not include plaintiff's limited language ability in her residual functional capacity. (AR 19, 22). Neither the vocational expert nor the ALJ made any effort to explain how plaintiff's limited language capabilities comport with the "Level 2" language skills required for a plumbing hardware assembler. Because the ALJ did not provide a persuasive explanation for this apparent conflict with the DOT job description, the Court cannot affirm the ALJ's step four determination on the basis that she is capable of performing her past relevant work as it is generally performed. See Pinto, 249 F.3d at 845-47 (ordering remand where ALJ failed to "address[] the impact of [the claimant's] illiteracy on her ability to find and perform a similar job").

Remand is warranted for the ALJ to consider the impact of plaintiff's limited English language ability on her ability to perform her past relevant work. If necessary, the ALJ shall proceed to step five of the sequential evaluation.*fn3


For the foregoing reasons, 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.*fn4



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