Hector Mendoza v. Carolyn W. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HECTOR MENDOZA,
Plaintiff,

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v.

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Case No. CV 16-3955-SS

MEMORANDUM DECISION AND ORDER

CAROLYN W. COLVIN, Acting
Commissioner of the Social
Security,
Defendant.

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I.

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INTRODUCTION

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Plaintiff Hector Mendoza (“Plaintiff”) seeks review of the

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final

decision

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Administration (the “Commissioner” or the “Agency”) denying his

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application for disability benefits. The undersigned United States

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Magistrate Judge has jurisdiction, pursuant to 28 U.S.C. § 636(c).

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For the reasons stated below, the decision of the Commissioner is

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REVERSED

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consistent with this decision.

and

of

the

REMANDED

Commissioner

for

further

of

the

Social

administrative

Security

proceedings

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II.

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PROCEDURAL HISTORY

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Plaintiff filed an application for disability benefits on
March 14, 2011, alleging a disability starting on January 8, 2009.
(Administrative Record (“AR”) 16).

Plaintiff had previously been

denied social security benefits in 2007.

(Id.).

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On

March

Administrative

7,

2014,

Law

Judge,

Plaintiff

had

Cynthia

Minter

a

hearing

before

(“ALJ”).

Vocational expert (“VE”) Randi Headrick also testified.
49-54).
benefits.

(AR

an
34).

(AR 34,

On October 31, 2014 the ALJ issued a decision denying
(AR 27).

Plaintiff filed a complaint for review of the

Commissioner’s unfavorable decision on June 4, 2016. (Dkt. No. 1).

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III.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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To

qualify

for

disability

benefits,

a

claimant

must

demonstrate a medically determinable physical or mental impairment
that prevents him from engaging in substantial gainful activity
and that is expected to result in death or to last for a continuous
period of at least twelve months.
721 (9th Cir.

Reddick v. Chater, 157 F.3d 715,

1998) (citing 42 U.S.C. § 423 (d)(1)(A)).

The

impairment must render the claimant incapable of performing the
work he previously performed and incapable of performing any other
substantial gainful employment in the national economy.

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Tackett

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v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. §
423 (d)(2)(A)).

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To decide if a claimant is entitled to benefits, an ALJ
conducts a five-step inquiry.

20 C.F.R. §§ 404.1520, 416.920.

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(1)

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gainful activity?

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disabled.
(2)

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(3)

Does the claimant’s impairment meet or equal one of

claimant is found disabled.

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If so, the

If not, proceed to

step four.
(4)

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Is the claimant capable of performing his past
work?

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If not, the

If so, proceed to

Part 404, Subpart P, Appendix 1?

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Is the claimant’s impairment severe?

the specific impairments described in 20 C.F.R.

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If not, proceed to step two.

step three.

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If so, the claimant is found not

claimant is found not disabled.

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Is the claimant presently engaged in substantial

If so, the claimant is found not disabled.

If not, proceed to step five.
(5)

Is the claimant able to do any other work?

If not,

the claimant is found disabled. If so, the claimant
is found not disabled.

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Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R.
§§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

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The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step five.
Bustamante, 262 F.3d at 953-54.

Additionally, the ALJ has an

affirmative duty to assist the claimant in developing the record
at every step of the inquiry.

(Id. at 954).

If, at step four,

the claimant meets his burden of establishing an inability to
perform past work, the Commissioner must show that the claimant
can perform some other work that exists in “significant numbers”
in

the

national

economy,

taking

into

account

the

claimant’s

residual functional capacity (“RFC”), age, education, and work
experience.

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at

721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

The Commissioner

may do so by the testimony of a vocational expert (“VE”) or by
reference to the Medical-Vocational Guidelines appearing in 20
C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the
Grids”).

Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).

When a claimant has both exertional and non-exertional limitations,
the Grids are inapplicable and the ALJ must take VE testimony.
Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart
v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

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IV.

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THE ALJ’S DECISION

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The ALJ followed the five-step sequential evaluation process
and concluded that Plaintiff was not under a disability within the
meaning of the Social Security Act from his alleged disability
onset date of March 14, 2011, through the date of the ALJ’s
decision.

(AR 26).

At step one, the ALJ found that Plaintiff had

not engaged in substantial gainful employment since March 14, 2011.
(AR 19).

At step two, the ALJ found that Plaintiff had the

following
history

severe

of

impairments:

asthma,

depressive disorder.

history

history

of

right

of

hematuria,

knee

injury

lumbago,

and

major

(Id.).

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At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. 416.920(d), 416.925, 416.926).

(AR 19).

The ALJ specifically found that Plaintiff’s mental impairments
neither met nor medically equaled the criteria in “Paragraph B” or
“Paragraph C” of listing 12.06.

(AR 20).

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The ALJ then found at step four that Plaintiff had the
following RFC:

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[Plaintiff] has the residual functional capacity to do
the following: 1) lift and carry twenty pounds on an

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occasional basis and ten pounds on a frequent basis; 2)

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stand/walk for four hours in an eight-hour day; 3) sit

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for four hours in an eight-hour day; and 4) occasionally

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stoop, kneel, and crawl.

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or crouch.

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The claimant is unable to squat

He is also only able to understand, remember,

carry out, and sustain jobs of one to two steps.

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Finally

with regard to his ability to sit or stand/walk, he needs

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to alternate positions every hour.

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He can remain in

either position (i.e., sit or stand/walk) for up to an

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hour

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at

a

stand/walk,

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time.
he

However,

needs

to

sit

when
for

alternating
fifteen

to

from
twenty

minutes.

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(AR 20).

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The ALJ stated that she had considered all of Plaintiff’s
symptoms and the extent to which they could reasonably be accepted
as

consistent

with

the

objective

medical

evidence

and

other

evidence, based on the requirements of 20 C.F.R. 416.929 and Social
Security Rulings (“SSRs”) 96-4p and 96-7p.

(Id.).

The ALJ also

considered opinion evidence in accordance with the requirements of
20 C.F.R. § 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.

(Id.).

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The ALJ stated that she was giving no weight to Dr. Alexandre’s
opinion that Plaintiff is disabled or unemployable, because that
opinion is a legal determination reserved for the ALJ, and there
is no medical evidence to support that finding.

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(AR 22-23).

The

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ALJ gave greater weight to the opinions of Dr. Asuncion, Dr. EllaTamayo, and Dr. Pong.

The ALJ relied upon these opinions to find

that Plaintiff is capable of a reduced range of light work.
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(AR

The ALJ gives little weight to Dr. Pinanong’s opinion as to

Plaintiff’s mental status because of the lack of ongoing treatment,
thus

Dr.

Pinanong’s

opinion

only

represents

a

“snapshot”

of

Plaintiff’s mental state, which is an unreliable indicator of
mental status.

(AR 23).

The ALJ accords substantial weight to

the opinion of Norman Zukowsky, Ph.D. which states that Plaintiff
has the ability to carry out and sustain a routine of one to two
steps, along with stating that Plaintiff has no limitations on
socialization or adaptation.

(Id.).

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The

ALJ

determined

that

Plaintiff

was

not

capable

of

performing his past relevant work as a warehouse worker or a forklift driver.

(AR 25).

However, at step five the ALJ found that

Plaintiff was able to perform other work existing in significant
numbers in the national economy.
(AR 25).

20 C.F.R. 416.969 and 416.969(a).

The ALJ specifically noted the VE’s testimony that an

individual of Plaintiff’s age, education, work experience and RFC
was capable of working as a small parts assembler or lamp shade
assembler.

(AR 26).

Therefore, the ALJ concluded that Plaintiff

was not under a disability as defined by 20 C.F.R. 416.920(g).
26).
//

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(AR

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V.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.

“The court may set aside

the Commissioner’s decision when the ALJ’s findings are based on
legal error or are not supported by substantial evidence in the
record

as

a

whole.”

Aukland

v.

Massanari,

257

F.3d

1033,

1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,
885 F.2d 597, 601 (9th Cir. 1989)). However, the court must “affirm
the denial of disability benefits if it is supported by substantial
evidence and the Commissioner applied the correct legal standards.”
Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996).

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“Substantial evidence is more than a scintilla, but less than
a preponderance.”

Reddick, 157 F.3d at 720 (citing Jamerson v.

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

It is “relevant

evidence which a reasonable person might accept as adequate to
support a conclusion.”

(Id.).

To determine whether substantial

evidence supports a finding, the court must “consider the record
as a whole, weighing both evidence that supports and evidence that
detracts from the [Commissioner’s] conclusion.”

Aukland, 257 F.3d

at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.
1993)).

If the evidence can reasonably support either affirming

or reversing that conclusion, the court may not substitute its

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judgment for that of the Commissioner.

Reddick, 157 F.3d at 720-

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VI.

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DISCUSSION

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Plaintiff contends that the ALJ erred in relying on the VE’s
identification of jobs that Plaintiff is capable of doing and that
VE’s testimony is inconsistent with other reliable publications.
(Plaintiff’s Memorandum in Support of Complaint (“PMC”), Dkt. No.
17, at 4-10).

The Court finds that remand is required because the

ALJ did not consider Plaintiffs reasoning level when accepting VE’s
testimony about hypothetical jobs Plaintiff is capable of doing.
Accordingly, the ALJ’s decision must be reversed and this action
remanded for further proceedings.

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A. The ALJ Must Consider Reasoning Level When Determining

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Plaintiff’s Capability of Performing Other Jobs

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Plaintiff claims that the ALJ erred by relying upon the VE’s
testimony identifying jobs that required reasoning level 2 when
the ALJ concluded that Plaintiff is only capable of performing
reasoning level 1 jobs.

(PMC at 4-5).

Defendant concedes that

the ALJ erred by not enquiring about the possible conflict between
limitations to the reasoning level 2 jobs that VE identified.
(Defendant’s Memorandum in Support of Answer (“DMA”), Dkt. 18, at
3).

However, Defendant contends that this error was harmless,

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because substantial evidence supports the conclusion that Plaintiff
had the RFC to perform the jobs VE mentioned.

(Id.)

The Court

disagrees.

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The

ALJ

found

that

Plaintiff

only

had

the

ability

to

understand, remember, carry out, and sustain jobs of one or two
steps.

(AR 20).

The DOT defines reasoning level 1 as the ability

to: apply commonsense understanding to carry out simple one- or
two- step instructions, thus by definition the ALJ found that
Plaintiff is reasoning level 1. DICOT Appendix C. The VE testified
that jobs Plaintiff could perform were small parts assembler and
lamp shade assembler, which both require reasoning level 2.
706.684-022 and 739.684-094.

DICOT

A limitation to reasoning level 1

has a facial conflict with occupations requiring reasoning level
2, and a failure to resolve facial conflict constitutes legal
error.

Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002-

04 (9th Cir. 2015); Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th
Cir. 2007).

Accordingly, the ALJ’s decision was erroneous.

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B. The ALJ’s Error Was Not Harmless

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Defendant

argues

that

because

Dr.

Pinanong

opined

that

Plaintiff had the ability to perform personal affairs, sustain
focused attention, and because Plaintiff’s ability to follow and
understand written and oral instructions was only mildly impaired,
the ALJ erred in concluding that Plaintiff is only capable of
reasoning level 1 jobs.

According to Defendant, Plaintiff is

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actually able to perform the reasoning level 2 jobs that VE
testified to.

(DMA at 3-4).

However, the ALJ determined that Dr.

Pinanong’s testimony carried limited weight because his examination
of Plaintiff is not a reliable indicator of Plaintiff’s mental
status.

(AR 23).

The ALJ gave substantial weight to Norman

Zukowsky’s testimony, who testified that Plaintiff is only able to
understand, remember, carry out and sustain a routine of one to
two steps.

(Id.).

There is substantial evidence supporting ALJ’s

finding that Plaintiff is only capable of performing reasoning
level 1 jobs.

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Because the ALJ found that Dr. Zukowsky’s opinion was entitled
to substantial weight, and because the ALJ relied upon his opinion,
the

Plaintiff

is

limited

to

work

with

level

1

reasoning.

Accordingly, the ALJ’s step-five error is not harmless.

Upon

remand, the ALJ must consider Plaintiff’s correct reasoning level
in determining the jobs Plaintiff is capable of performing.
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VII.

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CONCLUSION

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Consistent with the foregoing, IT IS ORDERED that judgment be
entered REVERSING the decision of the Commissioner and REMANDING
this matter for further proceedings consistent with this decision.

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DATED:

March 8, 2017

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/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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NOTICE
THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.

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