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Hoover v. Colvin

United States District Court, Ninth Circuit

January 15, 2014



JAY C. GANDHI, Magistrate Judge.

Robert Hoover ("Plaintiff") challenges the Social Security Commissioner's decision denying his application for disability benefits. Plaintiff contends that the Administrative Law Judge ("ALJ") improperly relied on the vocational expert ("VE") in determining that Plaintiff could perform his past relevant work or alternative work. (Joint Stip. at 6-14.) Specifically, Plaintiff argues that the ALJ failed to resolve apparent conflicts between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). ( Id. at 8-9.) The Court agrees with Plaintiff for the reasons discussed below.

A. An ALJ Must Resolve Apparent Conflicts Between a VE's Testimony and the DOT at Steps Four and Five of his Determination

Although the burden of proof lies with the claimant at step four, "the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). An ALJ's determination that a plaintiff has the residual functional capacity ("RFC") to perform his or her past relevant work must contain a finding of fact as to the physical and mental demands of the past job, and that the individual's RFC would permit a return thereto. SSR 82-62, 1982 WL 31386, at *4; see also Soria v. Callahan, 16 F.Supp.2d 1145, 1151 (C.D. Cal. 1997) ("At step four, the ALJ is obliged to ascertain the demands of the claimant's former work and to compare those demands with present capacity."). The ALJ may utilize a vocational expert to assist in this determination. See 20 C.F.R. ยง 404.1560(b)(2).

When a VE provides evidence about the requirements of a claimant's past job, the ALJ has "an affirmative responsibility to ask about any possible conflict" between that testimony and the DOT, and to obtain a reasonable explanation for the deviation. SSR 00-4p, 2000 WL 1898704, at *4. An ALJ does not make the requisite factual findings if he fails to inquire whether the VE's testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).

At step five of the sequential evaluation, the burden of proof shifts to the Commissioner to identify specific jobs existing in substantial numbers in the national economy that a claimant can perform despite his identified limitations. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Here again, an ALJ may not rely on a VE's testimony without first inquiring whether his or her testimony conflicts with the DOT, and resolving any apparent conflicts that may arise. Massachi, 486 F.3d at 1149.

B. The ALJ Failed To Resolve an Apparent Conflict Between the VE's Testimony and the DOT

The ALJ improperly found that Plaintiff could perform his past relevant work as a check cashier, or alternative work as a small products assembler, cashier II, or button assembler. Two reasons guide this determination.

First, the VE's testimony that Plaintiff could perform work as a check cashier, small products assembler, cashier II, or button assembler conflicts with Plaintiff's RFC. (Administrative Record ("AR") at 21, 770.) Specifically, in his RFC determination, the ALJ found that Plaintiff retained the ability to perform a range of light work with "no more than occasional work above shoulder level, " among other limitations. ( Id. at 21.) According to the DOT, the physical demands of all four jobs include more than occasional reaching.[2] See DOT 211.462-026, 1991WL 761844 (check cashier requires frequent reaching), DOT 739.687-030, 1991 WL 680180 (small products assembler requires constant reaching), DOT 211.462-010, 1991 WL 671840 (cashier II requires frequent reaching), and DOT 734.687-018, 1991 WL 679950 (button assembler requires constant reaching).[3]

In this context, reaching means "extending the hands and arms in any direction." SSR 85-15, 1985 WL 56857, at *7 (emphasis added). Contrary to Defendant's assertion that the descriptions of the identified jobs do not specify what types of reaching are required, ( see Joint Stip. at 15), all four contemplate significant potential reaching above the shoulders. Accordingly, an apparent conflict existed between the DOT's occupational definition of the check cashier, small products assembler, cashier II and button assembler positions and the VE's testimony that Plaintiff could perform such work.

Second, although the ALJ states in his decision that there was "no apparent conflict between the DOT and the VE's testimony, " (AR at 20 (underlining omitted)), there is no indication in the record that the ALJ asked the VE whether a conflict existed. ( See generally id. at 777-781.) The ALJ therefore took it upon himself to conclude, incorrectly, that the testimony was consistent. This was error. See Massachi, 486 F.3d at 1153 (if a conflict exists, the ALJ must determine whether the VE's explanation for it is reasonable, and whether a basis exists for relying on the VE rather than the DOT). In the absence of clear evidence in the record to support the deviation, the Court "cannot determine whether the ALJ properly relied on the [VE's] testimony." Id. at 1154. Thus, the Court finds that the ALJ's step-four and step-five determinations are not supported by substantial evidence.

C. Remand is Warranted

With error established, this Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See id. at 594.

Here, there are outstanding issues which must be resolved before a final determination can be made. On remand, the ALJ shall, with the assistance of a VE, analyze the physical demands of Plaintiff's past relevant work. In making this determination, the ALJ shall inquire on the record whether the VE's testimony is consistent with the DOT and, if it is not, obtain an explanation for any deviation. See Massachi, 486 F.3d at 1152-53.

The ALJ shall then reassess whether, in light of Plaintiff's RFC, he is capable of performing any of his past relevant work either as it was actually performed, or as it is generally performed in the national economy. If the ALJ concludes that Plaintiff is capable of performing his past relevant work, his decision must contain sufficient factual findings to support his determination as required by SSR 82-62, 1982 WL 31386, at *4.

If the ALJ determines that Plaintiff cannot return to his past work, he must continue to step five and, with the help of a VE, ascertain whether there are other jobs existing in significant numbers in the regional and national economies that Plaintiff can perform. Here again, the ALJ should obtain a reasonable explanation from the VE, if one exists, for any conflict between his testimony and the DOT. See, e.g., Hernandez v. Astrue, 2011 WL 223595, at *5 (C.D. Cal. 2011).[4]

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.

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