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Coehoorn v. Berryhill

United States District Court, C.D. California

April 19, 2017

VICKI LYNN COEHOORN, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff filed a Complaint on March 1, 2016, seeking review of the Commissioner's denial of her applications for Title II Social Security disability insurance benefits (“DIB”) and Title XVI supplemental security income (“SSI”) benefits. (See Dkt. No. 1.) All parties have consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (See Dkt. Nos. 11, 12, 13.) On December 30, 2016, the parties filed a “Joint Stipulation” (sometimes hereinafter “Joint Stip.”) (Dkt. No. 23), in which plaintiff seeks an order reversing the Commissioner's decision and awarding benefits. (See Joint Stip. at 13-15.) The Commissioner requests that the decision be affirmed or, in the alternative, that the case be remanded for further administrative proceedings. (Joint Stip. at 15-17.) The Court has taken the matter under submission without oral argument.

         SUMMARY OF ADMINISTRATIVE PROCEEDINGS

         This is the second time that plaintiff has sought relief in this District Court from a denial of her applications for DIB and SSI benefits by an Administrative Law Judge (“ALJ”). (See, e.g., AR 40-56, 1307-20.)

         On July 7, 2010, plaintiff protectively filed a Title II application for DIB, and on July 27, 2010, plaintiff protectively filed a Title XVI application for SSI benefits. (See AR 43.) Plaintiff has consistently claimed a “disability onset date” of July 2, 2010. (See AR 43, 1310.) Plaintiff was born on December 23, 1958, and she was 51 years old at the time she filed her applications for benefits. (See AR 51, 62.) Under agency guidelines, plaintiff was “an individual closely approaching advanced age” on the alleged disability onset date (i.e., July 2, 2010). (See 20 CFR §§ 404.1563, 416.963; AR 1319.) She has a limited education and is able to communicate in English. (AR 1319.)

         On December 2, 2011, a hearing was held before ALJ Mark B. Greenberg. (AR 61-86.) Plaintiff, represented by counsel, and a vocational expert (“VE”) Louis Mas, both testified at the hearing. (AR 62-81 (plaintiff); 82-85 (VE).) The VE described plaintiff's past relevant work (“PRW”) as a “meat packer” and a “machine operator.” (AR 83.) The VE said that the machine operator job was listed in the Dictionary of Occupational Titles (“DOT”) as No. 590.362-014, an occupation of medium exertional level, and plaintiff had done the machine operator job for the past 15 years. (AR 83.)

         ALJ Greenberg found that plaintiff met the insured requirements of the Social Security Act through March 31, and, at step one of the evaluative process, 2013 found plaintiff had not engaged in substantial gainful activity (“SGA”) since July 2, 2010, the alleged onset of disability date. (AR 45.)

         At step two, the ALJ determined that plaintiff had six “severe” medically determinable impairments: (1) fibromyalgia, (2) migraine headaches, (3) a history of a “left foot crush injury”; (4) “status post laparoscopic cholecystectomy”; (5) a history of hepatitis C; and (6) depression. (See AR 45.)[2] The ALJ found, at step three, that plaintiff's impairments did not meet or equal any impairment listed I 20 CFR Part 404, Subpart P, Appendix 1. (AR 45-46.) Before turning to step four, the ALJ next determined that plaintiff had the residual functional capacity (“RFC”) to perform “light work, ” finding, among other things, that plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently, ” and “stand and/or walk for no more than 2 hours in an 8-hour workday.” (AR 46-47.)

         At step four, after considering plaintiff's age, education, work experience, and RFC, ALJ Greenberg concluded that plaintiff could not perform her PRW. (See AR 45-51.) However, based on the VE's testimony at the first hearing, the ALJ concluded that plaintiff could perform the other jobs of “small parts assembler, ” DOT 706.684-022, or “production assembler, ” DOT 706.687-010. (AR 51-52.) Thus, ALJ Greenberg denied plaintiff's applications for benefits at step five. The Appeal Council upheld the denial. (AR 1-7.)

         On January 3, 2014, plaintiff filed a complaint in this District Court, seeking review of the Social Security Commissioner's denial of her benefits applications. (See Coehoorn v. Colvin, No. 13-2307-RNB, Dkt. No. 3.) On November 12, 2014, United States Magistrate Judge Robert N. Block issued an “Order Reversing Commissioner and Remanding for Further Administrative Proceedings.” (AR 1404-13; see also Coehoorn, No. 13-2307-RNB, Dkt. No. 18-16.) Judge Block's Order found, in pertinent part, that the VE's testimony about the other jobs of “small parts assembler” and “production assembler” that the VE opined plaintiff had the ability to perform conflicted with the RFC that ALJ Greenberg had assessed for plaintiff and the descriptions of those jobs in the DOT. (AR 1409-11.) the district court found that the ALJ had failed to adduce persuasive evidence to support the deviation from the DOT job descriptions in light of plaintiff's RFC and remanded the case for further administrative proceedings. (See AR 1411-12.)

         On remand, a new ALJ, Andrew Verne, conducted a second hearing on September 9, 2015. (See AR 1310-20.) A new VE, Mark J. Kelman, testified at the second hearing. (See AR 1310.) At that hearing, plaintiff's attorney stipulated that this was a “limited remand” for the purpose of resolving the conflicts with the DOT noted by the Magistrate Judge. (See AR 1326.) Plaintiff's attorney also stated:

we're willing to stip to the RFC that was previously found by [ALJ Greenberg] and even the VE testimony regarding the classification of past relevant work and no transferability of skills.

(Id.) Because plaintiff turned 55 in December 2013, her counsel noted that this “makes it an SSI case only at that point because of her date last insured issues.” (AR 1327.) ALJ Verne and plaintiff's counsel also agreed that no additional testimony from plaintiff was needed at the second hearing because “the issue is limited to the VE's testimony.” (AR 1327.)

         At the hearing before ALJ Verne, however, the VE testified that the “machine operator” job, i.e., to the job identified by VE Mas at the first hearing, was a “generic title, ” that did not adequately capture the specific nature of plaintiff's previous jobs. (See AR 1329.) The VE said “there's over a thousand of those in the DOT.” (Id.) The VE commented that plaintiff's description of her duties indicated that “‘every day, [she worked with] different machines, different duties, small parts some days, large parts other days, ' which makes it even more confusing.” (Id.) Thus, VE Kelman acknowledged that “the machine operator job varies rather markedly and actually it's very genuine in terms of how it's being described, ” and he stated, “I just need to know a little more about, were there days where she just did the sedentary aspects of machine operation . . . [and] if there was any training . . . .” (AR 1329-30.)

         At the second hearing, plaintiff's attorney also noted that the VE at the first hearing had identified the “machine operator job” as DOT 590.362-014 and argued that “it appears [plaintiff] might have had this hybrid [sic] type of job doing various things . . . [where] she did some days medium and some days sedentary . . . .” (AR 1330.) Plaintiff's attorney, apparently citing to Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1995), argued that “under the Valencia 9th Circuit case, . . . when you look at a hybrid job you have to look at the higher end job. If she did some days medium and some days sedentary . . . you classify it at the higher level.” (AR 1330.) In order to provide the additional information the VE needed about her specific duties in her PRW, plaintiff's attorney agreed to allow plaintiff to be put under oath at the second hearing, and the VE questioned her about her duties as a “machine operator.” (AR 1331-33.)

         Plaintiff testified that she primarily worked with “plastics, ” and, when asked whether “there were days you just sat and would operate the machine, ” plaintiff said that “it changed every single day, ” and “[h]our by hour they could tear that machine down . . . [and] it always changed.” (See AR 1331-32.) As to her particular tasks she testified You're not just sitting. You have to take the part, open the door, take the machine off, spray it, take the plastics off the machine, clip it, trim it, and it all has to be done very, very quickly. . . But to your question, every night was different.

         (AR 1332.)

         Following plaintiff's testimony, VE Kelman said “I think I know a little bit more about what she did and I've looked up that number at 590.362-014.” (AR 1333.) The VE then testified that the DOT number that plaintiff's attorney and the ALJ had previously identified, DOT 590.362-014, described “an asphalt machine operator, ” and the VE said “[s]he's not working with asphalt”; “I don't think she did that.” (AR 1333.) The VE further testified, “I don't believe that the prior job title matches what she did realistically at her job.” (AR 1334.) The VE then opined, based on plaintiff's testimony at that second hearing, that plaintiff's PRW was better-described as a “plastics machine operator, ” DOT 556.685-082, a “light, unskilled SVP 2” occupation, or a “grinding machine operator, ” DOT 690.685-194, a “sedentary and unskilled, SVP 2” occupation. (AR 1334-36.) The VE also opined that “[t]here's no skills associated with her past relevant work.” (AR 1337.)

         Plaintiff's attorney stated that he thought the VE's “testimony . . . is consistent with what my client has indicated that her job was this kind of hybrid job where she was doing anything from sedentary to medium.” (AR 1337.) Plaintiff's attorney said “It wasn't one specific job, it was just kind of, you know, hybrid.” (AR 1337.) ALJ Verne then posed a hypothetical to the VE about plaintiff's ability to do other work available in the national economy. (AR 1337-39.) Using what the ALJ and plaintiff's attorney agreed was the same RFC established by ALJ Greenberg at the first hearing, the ALJ posed a hypothetical that included, among other things, lifting or carrying 20 pounds occasionally and 10 pounds frequently, standing or walking for no more than 2 hours in an 8-hour day, and performing tasks that were not complex or detailed. (AR 1338.) The VE opined that plaintiff could perform a number of jobs, including: (1) office helper (DOT 239.567-010); (2) “telemarketing representative, sometimes known as appointment setter” (DOT 299.357-014); and (3) “cashier position, ” which included “fuel island cashier, [] parking lot cashier, [and] courtesy booth cashier” (DOT 211.462-010). (AR 1339-40.)

         At the second hearing, ALJ Verne stated that “my understanding of the issue [sic] is that there is past work based on this RFC that [plaintiff] qualifies for. If she doesn't qualify for the past work, then we get into whether she GRIDs [sic] or not under sedentary” (that is, whether plaintiff's RFC would dictate a result at step five of the sequential evaluation under the Medical-Vocational Guidelines “grids” at 20 C.F.R. Part 404, Subpart P, Appendix 2). (AR 1341.) Plaintiff's attorney stated “[i]t's our position that, again, her past work was a hybrid job ranging from sedentary to medium . . . but given my client's age at the time of the onset, which was 51 years old, GRID Rule 201.10 would direct a finding of disabled.” (AR 1342.) The ALJ then confirmed that plaintiff contention was that because her PRW was a “hybrid” job, the ALJ would have to assume a higher medium exertional level for the job, and plaintiff would therefore be precluded from doing such medium-level jobs. (AR 1342.) The VE then stated that plaintiff's PRW, as she actually performed it, included “the full range . . . from sedentary to medium . . . and I wouldn't quibble about that.” (AR 1343.)

         SUMMARY OF ADMINISTRATIVE DECISION

         Following that second hearing, on December 17, 2015, ALJ Verne issued a new opinion, denying plaintiff's benefits applications at both step four and step five. (See AR 1310-20.)

         In the second proceeding, ALJ Verne found, as did the first ALJ, that plaintiff had six severe impairments: (1) fibromyalgia, (2) migraine headaches, (3) a history of a “left foot crush injury”; (4) “status post laparoscopic cholecystectomy”; (5) a history of hepatitis C; and (6) depression. (See AR 1312.) ALJ Verne also found that plaintiff's impairments did not meet or equal any “listed” impairment. (AR 1312-13.) This time, however, the new ALJ found that plaintiff had the RFC “to perform less than the full range of light work, ” including standing and/or walking for no more than 2 hours in an 8-hour day, “occasional” postural activities and overhead reaching, and a limitation to “tasks that are non complex and non detailed.” (AR 1313-14, citing 20 C.F.R. §§ 404.1567(b), 416.967(b).)

         ALJ Verne found that plaintiff retained the RFC to perform her PRW as a “plastics machine operator, ” DOT 690.685-194, light, unskilled: SVP[3] 2, or a “grinding machine operator, ” DOT 556.685-082, sedentary, unskilled: SVP 2. (See AR 1318.) Specifically, at step four, based on the VE's testimony, the ALJ found that plaintiff was able to perform the identified PRW “as actually and generally performed.” (AR 1318.)

         ALJ Verne also determined that plaintiff's applications should be denied at step five. (See AR 1319-20.) He concluded, in light of plaintiff's RFC for light work with certain additional limitations and based on the VE's testimony, that plaintiff could perform the following other jobs available in significant numbers in the national economy: (1) office helper, DOT 239.567-010; (2) “telemarketing representative, sometimes known as appointment setter, ” DOT 288.357-014; and (3) ...


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