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Campos v. Colvin

United States District Court, C.D. California, Eastern Division

December 10, 2014

MARIO ALFREDO CAMPOS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Mario Alfredo Campos, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.

For Carolyn W Colvin, Acting Commissoner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Cynthia B De Nardi, LEAD ATTORNEY, Office of the U.S. Attorney, Office of the General Counsel, Region IX, San Francisco, CA.

DECISION AND ORDER

CARLA M. WOEHRLE, United States Magistrate Judge.

PROCEEDINGS

On August 8, 2013, Mario Alfredo Campos (" Plaintiff") filed a Complaint seeking review of the Commissioner's denial of his applications for disability insurance benefits and supplemental security income. Thereafter, the parties filed a Consent to Proceed Before United States Magistrate Judge Carla Woehrle. On March 20, 2014, Defendant filed an Answer to the Complaint. On July 30, 2014, the parties filed their Joint Stipulation (" Joint Stip.").

As discussed below, the Court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.

BACKGROUND

On December 22, 2009, Plaintiff protectively filed applications for disability insurance benefits and supplemental security income. (Administrative Record [" AR" ] at 9.) Plaintiff alleged that, beginning on February 19, 2008, he was disabled because of a lower back injury. (AR at 40.)

The Commissioner denied Plaintiff's applications initially and on reconsideration. (AR at 9, 40-44.) Plaintiff requested an administrative hearing, which was held by an Administrative Law Judge (" ALJ") on April 3, 2012. (AR at 9, 526.) Plaintiff appeared at the hearing with counsel, and the ALJ heard testimony from Plaintiff and a vocational expert. (AR at 527-53.)

The ALJ issued an unfavorable decision on April 17, 2012. (AR at 9-20.) In the decision, the ALJ found that Plaintiff had the following " severe" impairments: degenerative disc disease, left shoulder impingement/superior labral anterior-posterior lesion; myofascial pain, and status post left carpal tunnel release. (AR at 11.) The ALJ also found that Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of a listed impairment. (AR at 24-25.) The ALJ also found that Plaintiff had a residual functional capacity for " light work, " which precluded Plaintiff from returning to his past relevant work as a stocker and forklift operator. (AR at 14, 18-19.) Finally, the ALJ found that Plaintiff could perform other work in the national economy, specifically the occupations of assembler of small parts and production assembler. (AR at 19-20.) The ALJ therefore concluded that Plaintiff was not disabled as defined by the Social Security Act. (AR at 20.)

Plaintiff requested review of the ALJ's decision by the Appeals Council. (AR at 5.) On June 13, 2013, the Appeals Council denied Plaintiff's request for review. (AR at 1-4.)

PLAINTIFF'S CONTENTIONS

The parties' Joint Stipulation sets out the following disputed issues:

1. Whether the ALJ's step five determination was based on a conflict between the vocational expert's testimony and the Dictionary of Occupational Titles;
2. Whether the ALJ rendered a proper adverse credibility determination; and
3. Whether the ALJ properly considered plaintiff's back problem under Listing 1.04.

The Court finds that Issue One is dispositive.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). In other words, it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401.

In determining whether substantial evidence supports the ALJ's findings, the Court must review the record as a whole and consider " both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[s]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). " If the evidence can reasonably support either affirming or reversing, " the Court " may not substitute its judgment" for that of the ALJ, and the ALJ's decision must be upheld. Id. at 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

DISCUSSION

A. The Sequential Evaluation

To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test. See 20 C.F.R. § § 404.1520, 416.920. At step one, the ALJ determines if the claimant is engaging in " substantial gainful activity." 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is found not disabled. If he is not, the ALJ proceeds to step two.

At step two, the ALJ determines whether the claimant has a " severe" impairment or combination of impairments. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is " severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). If the claimant does not have a " severe" impairment or combination of impairments, disability benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairment or combination of impairments is " severe, " the ALJ proceeds to step three.

At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or equals an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. 20 C.F.R. § § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is automatically determined disabled. See 20 C.F.R. § § 404.1520(d), 416.920(d). If not, the ALJ proceeds to step four.

At step four, the ALJ must assess the claimant's residual functional capacity (" RFC"). The RFC is the " most [one] can still do despite [his or her] limitations" and represents an assessment " based on all the relevant evidence." 20 C.F.R. § § 404.1545(a)(1), 416.945(a)(1). The ALJ then must determine whether the claimant's RFC is sufficient for the claimant to perform past relevant work. 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the claimant is not disabled. If the claimant is no longer capable of past relevant work, the ALJ proceeds to step five. See 20 C.F.R. § § 404.1520(f), 416.920(f).

At the fifth and final step, the ALJ determines whether, considering claimant's RFC, age, education, and work experience, the claimant is able to perform other work that is available in significant numbers in the national economy. 20 C.F.R. § § 404.1520(a)(4)(v), 416.920(a)(4)(v). If he is, the claimant is not disabled. If he is not, the claimant is disabled and entitled to benefits. Id.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are nonadversarial and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n. 3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner at step five. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520, 416.920.

B. Step Five Determination

In Issue One, Plaintiff contends that the ALJ's step five determination was based on a conflict between the testimony of the vocational expert (" VE") and the Dictionary of Occupational Titles (" DOT"). (Joint Stip. at 3-10.)

When an ALJ relies on the testimony of a VE at step five, the VE must identify a specific job or jobs in the national economy with requirements that the claimant's physical and mental abilities and vocational qualifications would satisfy. See Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Burkhart v. Bowen, 856 F.2d 1335, 1340 n. 3 (9th Cir. 1988); 20 C.F.R. § § 404.1566(b), 416.966(b). The DOT is the Commissioner's " primary source of reliable job information" and creates a rebuttal presumption as to a job classification. See Johnson v. Shalala, 60 F.3d 1428, 1434 n.6, 1435 (9th Cir. 1995); see also Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). An ALJ may not rely on a VE's testimony regarding the requirements of particular jobs that the claimant might be able to perform without first inquiring of the VE whether his testimony conflicts with the DOT and without obtaining a reasonable explanation for any apparent conflicts. See Social Security Ruling (" SSR") 00-4p, 2000 WL 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007).[1] An ALJ may rely on VE testimony that contradicts the DOT only insofar as the record contains persuasive evidence to support the deviation. See Johnson, 60 F.3d at 1435; see also Tommasetti, 533 F.3d at 1042; Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997).

During Plaintiff's hearing, the ALJ asked the VE a hypothetical question positing an individual who could perform " light work" but notably would be limited to two to three hours of standing and/or walking in an eight-hour workday. (AR at 550-51.) The VE testified that, even with this limitation, the individual could perform the occupations of assembler of small parts and production assembler, with no erosion of the occupational base for either occupation. (AR at 551.) The VE also affirmed that his testimony was consistent with the DOT. (AR at 551-52.) According to the DOT, both of the assembler occupations identified by the VE are classified as unskilled and light. See DOT Nos. 706.684-022 (Assembler, Small Products I); and 706.687-010 (Assembler, Production).

Plaintiff contends that light work generally requires standing or walking for most of an eight-hour workday and therefore, his limitation in standing and walking raised an apparent conflict between the VE's testimony and the DOT. (Joint Stip. at 5.) The Court agrees. The definition of light work used by the DOT contemplates standing or walking for most of the workday. See Gallant, 753 F.2d at 1454 n. 1 (" [T]he full range of light work requires standing or walking for up to two-thirds of the workday."); SSR 83-10, 1983 WL 31251, at *5 (a job is " light work" when " it requires a good deal of walking or standing"); 20 C.F.R. § § 404.1567(b) and 416.967(b) (same). The ALJ therefore could not properly rely on the VE's unsupported opinion that the two assembler occupations could be performed with Plaintiff's significant restrictions in walking and standing. See SSR 00-4p, 2000 WL 1898704, at *3 (a conflict is raised when an ALJ relies on VE testimony that an occupation requires less abilities or skills than those described in the DOT). Although Defendant contends that the DOT " suggests" these occupations do not require walking or standing to a significant degree because they require using arm controls or handholds and working at a production rate pace (Joint Stip. at 8), no concrete evidence was presented that either of these two unskilled occupations is performed in a seated position or in this way. Indeed, the Commissioner's own rulings state that " [r]elatively few unskilled light jobs are performed in a seated position." See SSR 83-10, 1983 WL 31251, at *5. Accordingly, the VE's testimony raised an apparent conflict with the DOT.

Moreover, the ALJ failed to adduce persuasive evidence to support the deviation. Such evidence may include, for example, information not listed in the DOT but available from other reliable publications, information obtained directly from employers, or information from the VE's experience in job placement or career counseling. See SSR 00-4p, 2000 WL 1898704, at *2. No such evidence was presented here. Although the VE testified without elaboration that a person limited to two to three hours of standing and/or walking in an eight-hour workday could perform the two assembler occupations with no erosion of the occupational base for either occupation, this brief and conclusory testimony did not constitute persuasive evidence. See Tommasetti, 533 F.3d at 1042 (VE's brief testimony that a person limited to sedentary work could perform an occupation classified by the DOT as light, purportedly because the occupation " is performed in a variety of ways in the national economy, " did not constitute persuasive evidence). Rather, the record was unclear as to the basis for the VE's testimony, and the ALJ therefore erred by relying on it without any explanation. See Massachi, 486 F.3d at 1153 (" The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the Dictionary of Occupational Titles."); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (where a VE's testimony conflicts with the DOT, " the ALJ must definitively explain this deviation").

Finally, although Defendant points out that Plaintiff's counsel failed to object to the VE's qualifications or testimony at the hearing (Joint Stip. at 10), the Court does not find this to be a proper basis to uphold the ALJ's step five determination. Such a finding could not be reconciled with well-established authority that Social Security proceedings are inquisitorial rather than adversarial in nature; that ALJs have a special duty to develop the record even when claimants are represented by counsel; and that ALJs have an affirmative duty to resolve apparent conflicts raised by a VE's testimony without regard to how the conflict was identified. See Sims v. Apfel, 530 U.S. 103, 111-12, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) (noting that Social Security proceedings are informal and nonadversarial, and holding that claimants need not raise specific issues with the Appeals Council before seeking judicial review on those issues); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (ALJs have a special duty to fully and fairly develop the record even when the claimant is represented by counsel); SSR 00-4p, 2000 WL 1898704, at *4 (ALJs must resolve conflicts between VE testimony and the DOT " irrespective of how the conflict was identified"); see also Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (concluding that a claimant's failure to object to the VE's testimony at the hearing did not forfeit a step five issue because SSR 00-4p imposes an " affirmative duty" of inquiry on the ALJ); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (same because " claimants need not preserve issues in the proceedings before the Commissioner or her delegates") ( citing Sims, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80). The absence of an objection by Plaintiff's counsel at the hearing is even less compelling here because this case concerns an error at step five, where the burden to produce vocational evidence rests with Defendant, not Plaintiff. See Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir. 1999) (" To allow an ALJ to elicit and rely on summary conclusions given by a VE [at step five], in the absence of contrary testimony elicited by the claimant through cross-examination, would amount to shifting the burden to produce and develop vocational evidence back to the claimant."); see also Hackett, 395 F.3d at 1175 (noting that SSR 00-4p, essentially codifies Haddock").

In sum, the Court finds that reversal is warranted because the ALJ failed to properly resolve the apparent conflict between the VE's testimony and the DOT.

C. Remand is Required to Remedy the Defects in the ALJ's Decision

The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179. However, 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. Id. (decision whether to remand for further proceedings turns upon their likely utility).

Here, although Issue One warrants reversal of the ALJ's decision, Plaintiff's entitlement to benefits is not clear from the existing record. See Strauss v. Commissioner of Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (reversal for award of benefits is appropriate only where the record demonstrates claimant is disabled within the meaning of the Social Security Act). Moreover, none of Plaintiff's remaining issues warrants reversal of the ALJ's decision and would not direct a finding of disability even if they were decided in Plaintiff's favor. Accordingly, because there remain outstanding issues to be resolved, remand for further proceedings is appropriate.

ORDER

Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is REVERSED.

2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

JUDGMENT

IT IS ADJUDGED that this action is remanded to defendant for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) and consistent with the accompanying Decision and Order.


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