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Raymond Smiddy v. Michael J. Astrue

September 29, 2011

RAYMOND SMIDDY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred when he tacitly rejected the examining psychologist's opinion and concluded that Plaintiff could perform his prior work. For the following reasons, the Court agrees and remands the case to the Agency for further proceedings consistent with this opinion.

II. BACKGROUND

Plaintiff applied for SSI in March 2006, alleging that he had been unable to work since January 2006, due to osteoarthritis, plantar fasciitis, a bone spur on the spine, and bursitis of the shoulders. (Administrative Record ("AR") 95-100, 125.) The Agency denied the application initially and again on reconsideration. (AR 63-67, 71-75.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 60.) On July 23, 2008, Plaintiff appeared with counsel at the hearing and testified. (AR 26-42.) On August 29, 2008, the ALJ issued a decision, denying benefits. (AR 15-25.) After the Appeals Council denied Plaintiff's request for review (AR 6-9), he commenced this action.

III. ANALYSIS

Though broken down into four claims, the gist of Plaintiff's challenge to the ALJ's decision is that he ignored the opinion of examining psychologist Mark Pierce. (Joint Stip. 3-7, 9-13, 15-18.) In Plaintiff's view, Dr. Pierce's limitations precluded Plaintiff from performing his prior jobs. The Agency disagrees. It contends that the ALJ adopted Dr. Pierce's opinion in reaching his conclusion that Plaintiff could work. For the following reasons, the Court sides with Plaintiff.

Dr. Pierce performed consultative psychological examinations of Plaintiff in May 2006 and May 2007. (AR 267-73, 346-52.) In both, he found that Plaintiff suffered from depressive disorder, not otherwise specified, that caused him to be limited in his ability to function in the workplace. Critical to the Court's analysis here is a limitation to simple, repetitive work involving "simple one[-] and two[-]part instructions." (AR 272, 352.) The ALJ translated this limitation into "simple, repetitive tasks." (AR 18.) Plaintiff argues that the ALJ's failure to also include a limitation for simple one- and two-part instructions amounted to a tacit rejection of Dr. Pierce's opinion. The Agency contends that the ALJ's use of the phrase "simple, repetitive tasks" took into account this limitation.

The answer lies in the Dictionary of Occupational Titles ("DOT"). It categorizes reasoning that is limited to following one- and two-part instructions as Reasoning Level 1, i.e.:

Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.

See DOT, Appendix C, Components of the Definition Trailer, 1991 WL 688702 (4th ed. rev. 1991).

Reasoning Level 2, on the other hand, applies to people who can: Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.

See DOT No. 787.685-010; DOT, Appendix C, Components of the Definition Trailer, 1991 WL 688702 (4th ed. rev. 1991).

Thus, an individual who is limited to performing jobs involving one- and two-part instructions is limited to jobs requiring Reasoning Level 1. The jobs cited by the vocational expert and relied on by the ALJ in concluding that Plaintiff could work---i.e., fast-food worker (DOT No. 311.472-010) and sales attendant (DOT No. 299.677-010)--require Reasoning Level 2 and 3, respectively. Thus, they are well beyond Plaintiff's capacity. See Boltinhouse v. Astrue, 2011 WL 4387142, at *2 (C.D. Cal. Sept. 21, 2011) (concluding that Dr. Pierce's restriction to work involving one- and two-part instructions precluded work involving Level 2 reasoning); Reaza v. Astrue, 2011 WL 999181, at *3-4 (C.D. Cal. Mar. 21, 2011) (same); Murphy v. Astrue, 2011 WL 124723, at *7 (C.D. Cal. Jan. 13, 2011) (same); Watson v. Astrue, 2010 WL 4269545, at *4 n.4 (C.D. Cal. Oct. 22, 2010) (same); Grisby v. Astrue, 2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010) ("Level 2 reasoning jobs may be simple, but they are not limited to one- or two-step instructions. The restriction to jobs involving no more than two-step ...


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