Christopher Keller v. Carolyn W. Colvin

Filing 21

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. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHRISTOPHER KELLER,

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Case No. CV 16-5042 (SS)

Plaintiff,
v.

MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

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I.

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INTRODUCTION

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Plaintiff Christopher Keller (“Plaintiff”) seeks review of

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the final decision of the Commissioner of the Social Security

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Administration

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application for Disability Insurance Benefits (“DIB”). The parties

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consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of

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the undersigned United States Magistrate Judge.

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stated below, the decision of the Commissioner is REVERSED and

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REMANDED for further proceedings.

(the

“Commissioner”

or

“Agency”)

denying

his

For the reasons

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II.

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PROCEDURAL HISTORY

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Plaintiff filed an application for Title II DIB on July 22,

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2013.

(Administrative Record (“AR”) 144-45).

In the application,

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Plaintiff alleged a disability onset date of January 1, 2012.

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144).

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October 21, 2013.

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Plaintiff requested a hearing before an Administrative Law Judge

(AR

The Agency denied Plaintiff’s application initially on
(AR 90-101, 98-101).

(AR 109-10).

On December 7, 2013,

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(“ALJ”).

Plaintiff testified before the ALJ, John

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D. Moreen, on October 21, 2014.

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2014, the ALJ issued a decision denying Plaintiff benefits.

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19-40).

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which the Appeals Council denied on May 19, 2016.

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Plaintiff filed the instant action on July 10, 2016.

(AR 44, 48-81).

On October 31,
(AR

Plaintiff timely requested review of the ALJ’s decision,
(AR 1-4).

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III.

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FACTUAL BACKGROUND

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A.

Plaintiff’s History

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Plaintiff was born on February 13, 1955.

(AR 48, 144).

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Plaintiff was 56 years old at the time of his alleged disability

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onset date of January 1, 2012 (AR 117), and 59 years old at the

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time of his hearing before the ALJ (AR 35, 48). Plaintiff completed

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more than four years of college and earned degrees in history and

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management/business administration.

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worked in the past as a claims adjuster (AR 57, 174), security
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(AR 48, 158).

Plaintiff

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guard (AR 54, 174, 181), and private investigator (AR 55).

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the exception of working one day in 2010, Plaintiff has not worked

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since December 31, 2008. (AR 49, 61). Plaintiff alleges disability

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due

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obesity/metabolic syndrome, depression, carpal tunnel/tendonitis,

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pre-diabetes, and back pain.

to

anxiety,

high

blood

sugar,

sciatica,

With

morbid

(AR 157).

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B.

Vocational Expert’s Testimony

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Vocational Expert (“VE”) Jane Hale testified at Plaintiff’s

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hearing on October 21, 2014.

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whether a hypothetical individual with Plaintiff’s characteristics

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and the limitation of occasional contact with others could perform

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Plaintiff’s past work as a security guard.

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testified

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limitations would “still allow the security guard job,” but the

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limitation “may [erode] the labor market.”

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explained that because the hypothetical person “would be limited

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to taking assignments that were away from the public,” the security

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guard job market would be eroded by “at least” 50 percent.

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83).

that

this

(AR 81-86).

hypothetical

person’s

The ALJ asked the VE

(AR 82).

The VE

characteristics

(AR 83).

and

The VE

(AR

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After the VE testified about job erosion, the ALJ asked

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whether the VE’s testimony was in conformance with the Dictionary

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of Occupational Titles (“DOT”).

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stating “Yes.”

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//

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//

(AR 83).

(AR 83).

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The VE answered by

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IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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To

qualify

for

disability

benefits,

a

claimant

must

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demonstrate a medically determinable physical or mental impairment

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that prevents the claimant from engaging in substantial gainful

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activity and that is expected to result in death or to last for a

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continuous period of at least twelve months.

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157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).

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The impairment must render the claimant incapable of performing

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the work she previously performed and incapable of performing any

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other substantial gainful employment that exists in the national

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economy.

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(citing 42 U.S.C. § 423(d)(2)(A)).

Reddick v. Chater,

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)

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To decide if a claimant is entitled to benefits, an ALJ

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conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920.

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The

steps are:

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(1)

Is the claimant presently engaged in substantial gainful

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activity?

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not, proceed to step two.

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(2)

Is

the

If so, the claimant is found not disabled.

claimant’s

impairment

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claimant is found not disabled.

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severe?

If

not,

If

the

three.

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(3)

If so, proceed to step

Does the claimant’s impairment meet or equal one of the

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specific impairments described in 20 C.F.R. Part 404,

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Subpart P, Appendix 1?
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If so, the claimant is found

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disabled.

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(4)

If not, proceed to step four.

Is the claimant capable of performing his past work? If

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so, the claimant is found not disabled.

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to step five.

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(5)

If not, proceed

Is the claimant able to do any other work?

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claimant is found disabled.

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If not, the

If so, the claimant is found

not disabled.

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Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

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262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-

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(g)(1) & 416.920(b)-(g)(1).

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The claimant has the burden of proof at steps one through four

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and

the

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Bustamante, 262 F.3d at 953-54.

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affirmative duty to assist the claimant in developing the record

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at every step of the inquiry.

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claimant meets his or her burden of establishing an inability to

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perform past work, the Commissioner must show that the claimant

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can perform some other work that exists in “significant numbers”

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in

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

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experience.

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

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may do so by the testimony of a VE or by reference to the Medical-

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Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

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Appendix 2 (commonly known as “the grids”).

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

the

Commissioner

national

has

economy,

the

burden

of

at

step

five.

Additionally, the ALJ has an

Id. at 954.

taking

proof

into

If, at step four, the

account

the

claimant’s

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

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The Commissioner

Osenbrock v. Apfel,

When a claimant has both

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exertional (strength-related) and non-exertional limitations, the

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Grids are inapplicable and the ALJ must take the testimony of a

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VE.

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Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing

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V.

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THE ALJ’S DECISION

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The ALJ employed the five-step sequential evaluation process

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and concluded that Plaintiff was not disabled within the meaning

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of the Social Security Act.

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that Plaintiff had not engaged in substantial gainful activity

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during the period from alleged disability onset of January 1, 2012,

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through date last insured of December 31, 2013.

(AR 25).

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two,

severe

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determinable impairments of a history of carpal tunnel syndrome on

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the right, essential tremor of the left upper extremity, mild

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degenerative changes of both knees, mild degenerative changes of

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both hips, degenerative changes of the lumbar spine, sciatica,

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obesity, and obstructive sleep apnea.

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the ALJ found that the severe impairments at step two did not meet

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or medically equal a listed impairment.

the

ALJ

found

that

(AR 40).

Plaintiff

At step one, the ALJ found

had

the

(Id.).

At step

medically

At the third step,

(AR 31).

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At step four, the ALJ found that Plaintiff had the RFC to

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perform light work as defined in 20 C.F.R. § 404.1567(b) except

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that the job could require no more than occasional contact with

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others.

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contact with others based on Plaintiff’s demeanor at the hearing

(AR 32).

The ALJ assessed this limitation to occasional

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and because he credibly testified that he was let go from his last

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job due to interpersonal discord.

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through the date last insured Plaintiff was capable of performing

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his past relevant work as a security guard.

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that this past work did not require the performance of work-related

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activities precluded by Plaintiff’s RFC.

(AR 38).

The ALJ found that

The ALJ determined

(Id.).

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The ALJ concluded that Plaintiff had failed to establish

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disability at any time from the date of onset of January 1, 2012,

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through the date last insured of December 31, 2013.

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Accordingly,

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disability as defined by the Social Security Act.

the

ALJ

found

that

Plaintiff

was

not

(AR 40).
under

a

(Id.).

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VI.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

“[The] court may set

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aside the Commissioner’s denial of benefits when the ALJ’s findings

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are based on legal error or are not supported by substantial

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evidence in the record as a whole.”

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1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see

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also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing

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Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

Aukland v. Massanari, 257 F.3d

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“Substantial evidence is more than a scintilla, but less than

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a preponderance.”

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

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Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).
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It is “relevant

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evidence which a reasonable person might accept as adequate to

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support a conclusion.”

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evidence supports a finding, the court must “‘consider the record

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as a whole, weighing both evidence that supports and evidence that

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detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d

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

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1993)).

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or reversing that conclusion, the court may not substitute its

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judgment for that of the Commissioner.

(Id.).

To determine whether substantial

If the evidence can reasonably support either affirming

Reddick, 157 F.3d at 720-

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21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

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1457 (9th Cir. 1995)).

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VII.

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DISCUSSION

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Plaintiff challenges the ALJ’s decision on the ground that

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the evidence fails to establish that Plaintiff can perform his past

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work of security guard with the limitation of occasional contact

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with others.

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4).

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below,

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proceedings consistent with this decision.

(Plaintiff’s Memorandum in Support of Complaint at

The Court agrees.
the

decision

Accordingly, for the reasons discussed
is

REVERSED

and

REMANDED

for

further

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A.

The ALJ Improperly Evaluated Plaintiff’s Ability To Perform
Past Relevant Work At Step Four

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Plaintiff argues that the ALJ erred by concluding that he can

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perform his past relevant work as a security guard with the RFC
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limitation of occasional contact with others.

(Id. at 4).

At step

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four, the claimant carries the burden of proving that he cannot

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return to a position similar to his past work.

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249 F.3d 840, 844 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1520(e),

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416.920(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)).

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“Although the burden of proof lies with the claimant at step four,

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the ALJ still has a duty to make the requisite factual findings to

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support his conclusion.”

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(1982) (“SSR 82-62)) (additional citations omitted).

Pinto v. Massanari,

Id. (citing SSR 82–62, 1982 WL 31386
“This is done

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by looking at the residual functional capacity and the physical

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and mental demands of the claimant’s past relevant work.”

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844-45 (citing 20 C.F.R. §§ 20 C.F.R. §§ 404.1520(e), 416.920(e)

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(internal quotation marks omitted)).

Id. at

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A claimant has the ability to return to previous work if he

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can perform the “‘actual functional demands and job duties of a

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particular past relevant job’” or “‘[t]he functional demands and

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job duties of the [past] occupation as generally required by

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employers throughout the national economy.’”

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SSR 82-61, 1982 WL 31387 (“SSR 82-61”)).

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findings as to the claimant’s residual functional capacity, the

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physical and mental demands of the past relevant work, and the

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relation of the residual functional capacity to the past work.”

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Id. (citing SSR 82–62).

Id. at 845 (quoting

“This requires specific

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The

ALJ

found

that,

“[b]ased

on

the

[VE]’s

testimony,

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[Plaintiff] can perform the physical requirements of all of his

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past relevant work, as it is generally performed if not as actually
9

1

performed.”1 (AR 39). “[T]he best source for how a job is generally

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performed is usually the [DOT].”

3

Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)); 20 C.F.R.

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§§ 1566(d), 416.1566(d); SSR 82-61).

Pinto, 249 F.3d at 845 (citing

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The ALJ was required to make specific findings regarding “the

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relation of [Plaintiff’s] residual functional capacity to [his]

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past work.”

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compare the job duties of security guard as generally performed

Pinto, 249 F.3d at 845.

This required the ALJ to

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and defined by the DOT with Plaintiff’s RFC.

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Cf. id.; 20 C.F.R. §

404.1520(e).

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The ALJ found that Plaintiff had the RFC to perform light work

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except that the job could require no more than “occasional contact

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with others.”

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to perform the job of security guard as including the temperament

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of “P:

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1991 WL 673100 (“DOT 372.667-034”); see also Revised Handbook for

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Analyzing Jobs, ch. 10 ¶ 2 (1991) (defining “Temperaments,” of

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which there are eleven, as “a component of Work Characteristics”

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and the “adaptability requirement made on the worker by specific

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types of jobs”).

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people,” conflicts with the ALJ’s assessed limitation of occasional

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contact with others.

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//

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(AR 32).

The DOT defines the temperaments necessary

Dealing with PEOPLE.”

DOT 372.667-034 (4th rev. ed. 1991),

This DOT temperament “P”, i.e., “dealing with

The ALJ found that Plaintiff could perform his past work as
generally required but not as actually performed. For this reason,
the Court does not address Plaintiff’s contention that he cannot
perform the actual demands of his past work.
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“[F]or an ALJ to rely on a job description in the [DOT] that

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fails to comport with a claimant’s noted limitations, the ALJ must

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definitively explain this deviation.”

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(citing Johnson, 60 F.3d at 1435).

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offered no explanation for his deviation from the DOT.

Pinto, 249 F.3d at 847

Here, the ALJ erred because he

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In addition, the ALJ erroneously relied on the VE’s testimony

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to conclude that Plaintiff could perform the physical requirements

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of his past work of security guard.

(AR 39).

The record did not

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contain the necessary evidence to support a deviation from the DOT.

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Cf. Pinto, 249 F.3d at 846 (for an ALJ to accept VE testimony that

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contradicts the DOT, the “record must contain ‘persuasive evidence

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to support the deviation’”) (quoting Johnson, 60 F.3d at 1435).

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Moreover,

the

ALJ

was

required

to

elicit

a

reasonable

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explanation for the conflict between the VE and DOT prior to relying

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on the VE’s testimony.

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1152-53 (9th Cir. 2007) (ALJ’s duty to develop the record requires

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ALJ to reconcile apparent conflicts by “determin[ing] whether

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[VE’s] explanation for the conflict is reasonable and whether a

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basis exists for relying on the expert rather than the [DOT]”);

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see also SSR 00-4p, 2000 WL 1898704 (2000).

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accepted the VE’s answer that her testimony was consistent with

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the DOT without obtaining the required explanation.

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not inquire, and the VE did not offer, any explanation of how a

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hypothetical person with the limitation of occasional contact with

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others could perform the job of security guard requiring the

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temperament of dealing with people.

Cf. Massachi v. Astrue, 486 F.3d 1149,

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However, the ALJ

The ALJ did

The ALJ erred by failing to

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reconcile this conflict.

Cf. Massachi, 486 F.3d at 1153-54 (ALJ

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erred by failing to ask VE whether testimony conflicted with DOT

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and, if so, whether there was a reasonable explanation for the

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conflict).

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6

The Agency contends that there is no conflict because the DOT

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does not discuss frequency of contact with others and a “common

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sense reading” of the DOT reveals that some jobs take place in

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closed establishments.

(Agency’s Mem. in Support of Answer at 5).

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However, the DOT’s security guard job requirement of dealing with

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people presumptively applies absent persuasive evidence supporting

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a deviation from the DOT.

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the ALJ failed to identify or rely upon any evidence to support

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the deviation.

Cf. Johnson, 60 F.3d at 1435.

Here,

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Finally, the VE testified that approximately 50 percent of

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the jobs of security guard would be eroded for a hypothetical

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person with the limitation of occasional contact with others.

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82-83).

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did not reconcile the conflict with the DOT.

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the VE nor ALJ acknowledged the DOT’s defined temperament of

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dealing with people.

(AR

Contrary to the Commissioner’s contention, this testimony
(AR 83).

Neither

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For these reasons, the ALJ failed to develop the record and

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support his decision with substantial evidence.

Cf. Pinto, 249

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F.3d

at

847-48

by

27

evidence

where

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plaintiff’s and neither ALJ nor VE addressed impact of plaintiff’s

(ALJ’s
the

decision

DOT

not

required

12

a

supported
language

substantial

ability

above

1

illiteracy

on

her

2

Accordingly,

3

Plaintiff could perform his past relevant work.

the

ability

ALJ

erred

to

find

and

step

four

at

perform
by

past

work).

concluding

that

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5

B.

Remand Is Required

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In sum, the ALJ’s decision at step four was not supported by

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substantial evidence.

In addition, the ALJ failed to develop the

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record by reconciling the conflict between the VE and DOT, and this

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failure was not “‘inconsequential to the ultimate nondisability

11

determination.’”

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2012) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 (9th Cir.

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2006)).

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defects.

Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir.

Accordingly, the case must be remanded to remedy these

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On remand, the ALJ must fully develop the record and determine

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whether sufficient evidence supports the conclusion that Plaintiff

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is capable of finding and performing his past relevant work.

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not, the ALJ must decide, based upon VE testimony, whether other

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jobs exist in the national or local economy that Plaintiff can

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perform.

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If

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VIII.

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CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Judgment be

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entered

REVERSING the decision of the Commissioner and REMANDING

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this matter for further proceedings consistent with this decision.

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IT IS FURTHER ORDERED that the Clerk of the Court serve copies of

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this Order and the Judgment on counsel for both parties.

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DATED:

June 5, 2017

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

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NOTICE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,

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WESTLAW OR ANY OTHER LEGAL DATABASE.

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