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Joe Munoz, Jr v. Michael J. Astrue

July 20, 2012

JOE MUNOZ, JR.,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT. ))



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on January 6, 2012, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on February 15, 2012.

Plaintiff filed a motion for summary judgment on June 15, 2012. Defendant filed a motion for summary judgment on July 16, 2012. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed January 9, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former warehouse worker, asserts disability based on alleged mental impairments (Administrative Record ("A.R.") 26-46, 48, 108-09, 139, 153). Dr. Romualdo R. Rodriguez, a consultative physician, diagnosed a "depressive disorder," but opined that Plaintiff is "[a]ble to understand, remember, and carry out simple one or two-step job instructions . . . [and is] [a]ble to do detailed and complex instructions" (A.R. 233-34). Dr. N. Haroun, a state agency physician, opined that Plaintiff's depression "should not preclude him from performing at least simple 1-2 step tasks," but also opined that Plaintiff is "moderately limited" in his "ability to carry out detailed instructions" (A.R. 239, 246, 248).

Plaintiff testified to depression that allegedly prevents him from doing much of anything (A.R. 35, 38, 41-42). Plaintiff assertedly cannot concentrate long enough or well enough to read or even to watch television (A.R. 38, 41-42). Plaintiff's sister reported that Plaintiff previously was able to "concentrate [and] stay functional," but now "can't stay focused enough to have any activities" (A.R. 160-63). Plaintiff's sister indicated that Plaintiff's condition affects his ability to follow instructions and "its [sic] hard for him to stay focused" (A.R. 164). According to the sister, Plaintiff tends to "get very confused," and cannot follow written instructions well (id.).

The Administrative Law Judge ("ALJ") found that a severe "depressive disorder" has reduced Plaintiff's mental capacity such that Plaintiff can perform only "one-to-two step instruction jobs" (A.R. 12-15). A vocational expert testified that a person so limited could perform Plaintiff's past relevant work as a warehouse worker (A.R. 48-49).

According to the Dictionary of Occupational Titles ("DOT"), Plaintiff's past relevant work requires "Reasoning Development Level 2." DOT § 922.687-058. The DOT defines Level 2 as requiring the worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions." DOT Appendix C. Level 2 appears to require a slightly higher level of functioning than Level 1. The DOT defines Level 1 as requiring that the worker "[a]pply commonsense understanding to carry out simple one-or-two-step instructions. . . ." Id.

The ALJ did not ask the vocational expert whether the expert's testimony was consistent with the information in the DOT (A.R. 48-49). The vocational expert did not volunteer whether the expert's testimony was consistent with the information in the DOT (id.). The ALJ's decision states that "the vocational expert's testimony is consistent with the information contained in the [DOT]" (A.R. 16). ///

In apparent reliance on the vocational expert's testimony, the ALJ found that Plaintiff still can perform Plaintiff's past relevant work (A.R. 16). The ALJ therefore denied benefits (id.). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. ...


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