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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER KELLER, 12 13 14 15 Case No. CV 16-5042 (SS) Plaintiff, v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Christopher Keller (“Plaintiff”) seeks review of 22 the final decision of the Commissioner of the Social Security 23 Administration 24 application for Disability Insurance Benefits (“DIB”). The parties 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of 26 the undersigned United States Magistrate Judge. 27 stated below, the decision of the Commissioner is REVERSED and 28 REMANDED for further proceedings. (the “Commissioner” or “Agency”) denying his For the reasons 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for Title II DIB on July 22, 5 2013. (Administrative Record (“AR”) 144-45). In the application, 6 Plaintiff alleged a disability onset date of January 1, 2012. 7 144). 8 October 21, 2013. 9 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, 10 (“ALJ”). Plaintiff testified before the ALJ, John 11 D. Moreen, on October 21, 2014. 12 2014, the ALJ issued a decision denying Plaintiff benefits. 13 19-40). 14 which the Appeals Council denied on May 19, 2016. 15 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). 16 17 III. 18 FACTUAL BACKGROUND 19 20 A. Plaintiff’s History 21 22 Plaintiff was born on February 13, 1955. (AR 48, 144). 23 Plaintiff was 56 years old at the time of his alleged disability 24 onset date of January 1, 2012 (AR 117), and 59 years old at the 25 time of his hearing before the ALJ (AR 35, 48). Plaintiff completed 26 more than four years of college and earned degrees in history and 27 management/business administration. 28 worked in the past as a claims adjuster (AR 57, 174), security 2 (AR 48, 158). Plaintiff 1 guard (AR 54, 174, 181), and private investigator (AR 55). 2 the exception of working one day in 2010, Plaintiff has not worked 3 since December 31, 2008. (AR 49, 61). Plaintiff alleges disability 4 due 5 obesity/metabolic syndrome, depression, carpal tunnel/tendonitis, 6 pre-diabetes, and back pain. to anxiety, high blood sugar, sciatica, With morbid (AR 157). 7 8 B. Vocational Expert’s Testimony 9 10 Vocational Expert (“VE”) Jane Hale testified at Plaintiff’s 11 hearing on October 21, 2014. 12 whether a hypothetical individual with Plaintiff’s characteristics 13 and the limitation of occasional contact with others could perform 14 Plaintiff’s past work as a security guard. 15 testified 16 limitations would “still allow the security guard job,” but the 17 limitation “may [erode] the labor market.” 18 explained that because the hypothetical person “would be limited 19 to taking assignments that were away from the public,” the security 20 guard job market would be eroded by “at least” 50 percent. 21 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 22 23 After the VE testified about job erosion, the ALJ asked 24 whether the VE’s testimony was in conformance with the Dictionary 25 of Occupational Titles (“DOT”). 26 stating “Yes.” 27 // 28 // (AR 83). (AR 83). 3 The VE answered by 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate a medically determinable physical or mental impairment 6 that prevents the claimant from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 10 The impairment must render the claimant incapable of performing 11 the work she previously performed and incapable of performing any 12 other substantial gainful employment that exists in the national 13 economy. 14 (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 18 The steps are: 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? 22 not, proceed to step two. 23 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 24 claimant is found not disabled. 25 severe? If not, If the three. 26 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 27 specific impairments described in 20 C.F.R. Part 404, 28 Subpart P, Appendix 1? 4 If so, the claimant is found 1 disabled. 2 (4) If not, proceed to step four. Is the claimant capable of performing his past work? If 3 so, the claimant is found not disabled. 4 to step five. 5 (5) If not, proceed Is the claimant able to do any other work? 6 claimant is found disabled. 7 If not, the If so, the claimant is found not disabled. 8 9 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 10 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 11 (g)(1) & 416.920(b)-(g)(1). 12 13 The claimant has the burden of proof at steps one through four 14 and the 15 Bustamante, 262 F.3d at 953-54. 16 affirmative duty to assist the claimant in developing the record 17 at every step of the inquiry. 18 claimant meets his or her burden of establishing an inability to 19 perform past work, the Commissioner must show that the claimant 20 can perform some other work that exists in “significant numbers” 21 in 22 residual functional capacity (“RFC”), age, education, and work 23 experience. 24 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 25 may do so by the testimony of a VE or by reference to the Medical- 26 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 27 Appendix 2 (commonly known as “the grids”). 28 240 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 5 The Commissioner Osenbrock v. Apfel, When a claimant has both 1 exertional (strength-related) and non-exertional limitations, the 2 Grids are inapplicable and the ALJ must take the testimony of a 3 VE. 4 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing 5 6 V. 7 THE ALJ’S DECISION 8 9 The ALJ employed the five-step sequential evaluation process 10 and concluded that Plaintiff was not disabled within the meaning 11 of the Social Security Act. 12 that Plaintiff had not engaged in substantial gainful activity 13 during the period from alleged disability onset of January 1, 2012, 14 through date last insured of December 31, 2013. (AR 25). 15 two, severe 16 determinable impairments of a history of carpal tunnel syndrome on 17 the right, essential tremor of the left upper extremity, mild 18 degenerative changes of both knees, mild degenerative changes of 19 both hips, degenerative changes of the lumbar spine, sciatica, 20 obesity, and obstructive sleep apnea. 21 the ALJ found that the severe impairments at step two did not meet 22 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). 23 24 At step four, the ALJ found that Plaintiff had the RFC to 25 perform light work as defined in 20 C.F.R. § 404.1567(b) except 26 that the job could require no more than occasional contact with 27 others. 28 contact with others based on Plaintiff’s demeanor at the hearing (AR 32). The ALJ assessed this limitation to occasional 6 1 and because he credibly testified that he was let go from his last 2 job due to interpersonal discord. 3 through the date last insured Plaintiff was capable of performing 4 his past relevant work as a security guard. 5 that this past work did not require the performance of work-related 6 activities precluded by Plaintiff’s RFC. (AR 38). The ALJ found that The ALJ determined (Id.). 7 8 The ALJ concluded that Plaintiff had failed to establish 9 disability at any time from the date of onset of January 1, 2012, 10 through the date last insured of December 31, 2013. 11 Accordingly, 12 disability as defined by the Social Security Act. the ALJ found that Plaintiff was not (AR 40). under a (Id.). 13 14 VI. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner’s decision to deny benefits. “[The] court may set 19 aside the Commissioner’s denial of benefits when the ALJ’s findings 20 are based on legal error or are not supported by substantial 21 evidence in the record as a whole.” 22 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 23 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 24 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 25 26 “Substantial evidence is more than a scintilla, but less than 27 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 28 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 7 It is “relevant 1 evidence which a reasonable person might accept as adequate to 2 support a conclusion.” 3 evidence supports a finding, the court must “‘consider the record 4 as a whole, weighing both evidence that supports and evidence that 5 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 6 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 7 1993)). 8 or reversing that conclusion, the court may not substitute its 9 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- 10 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 11 1457 (9th Cir. 1995)). 12 13 VII. 14 DISCUSSION 15 16 Plaintiff challenges the ALJ’s decision on the ground that 17 the evidence fails to establish that Plaintiff can perform his past 18 work of security guard with the limitation of occasional contact 19 with others. 20 4). 21 below, 22 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 23 24 25 A. The ALJ Improperly Evaluated Plaintiff’s Ability To Perform Past Relevant Work At Step Four 26 27 Plaintiff argues that the ALJ erred by concluding that he can 28 perform his past relevant work as a security guard with the RFC 8 1 limitation of occasional contact with others. (Id. at 4). At step 2 four, the claimant carries the burden of proving that he cannot 3 return to a position similar to his past work. 4 249 F.3d 840, 844 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1520(e), 5 416.920(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)). 6 “Although the burden of proof lies with the claimant at step four, 7 the ALJ still has a duty to make the requisite factual findings to 8 support his conclusion.” 9 (1982) (“SSR 82-62)) (additional citations omitted). Pinto v. Massanari, Id. (citing SSR 82–62, 1982 WL 31386 “This is done 10 by looking at the residual functional capacity and the physical 11 and mental demands of the claimant’s past relevant work.” 12 844-45 (citing 20 C.F.R. §§ 20 C.F.R. §§ 404.1520(e), 416.920(e) 13 (internal quotation marks omitted)). Id. at 14 15 A claimant has the ability to return to previous work if he 16 can perform the “‘actual functional demands and job duties of a 17 particular past relevant job’” or “‘[t]he functional demands and 18 job duties of the [past] occupation as generally required by 19 employers throughout the national economy.’” 20 SSR 82-61, 1982 WL 31387 (“SSR 82-61”)). 21 findings as to the claimant’s residual functional capacity, the 22 physical and mental demands of the past relevant work, and the 23 relation of the residual functional capacity to the past work.” 24 Id. (citing SSR 82–62). Id. at 845 (quoting “This requires specific 25 26 The ALJ found that, “[b]ased on the [VE]’s testimony, 27 [Plaintiff] can perform the physical requirements of all of his 28 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 2 performed is usually the [DOT].” 3 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)); 20 C.F.R. 4 §§ 1566(d), 416.1566(d); SSR 82-61). Pinto, 249 F.3d at 845 (citing 5 6 The ALJ was required to make specific findings regarding “the 7 relation of [Plaintiff’s] residual functional capacity to [his] 8 past work.” 9 compare the job duties of security guard as generally performed Pinto, 249 F.3d at 845. This required the ALJ to 10 and defined by the DOT with Plaintiff’s RFC. 11 Cf. id.; 20 C.F.R. § 404.1520(e). 12 13 The ALJ found that Plaintiff had the RFC to perform light work 14 except that the job could require no more than “occasional contact 15 with others.” 16 to perform the job of security guard as including the temperament 17 of “P: 18 1991 WL 673100 (“DOT 372.667-034”); see also Revised Handbook for 19 Analyzing Jobs, ch. 10 ¶ 2 (1991) (defining “Temperaments,” of 20 which there are eleven, as “a component of Work Characteristics” 21 and the “adaptability requirement made on the worker by specific 22 types of jobs”). 23 people,” conflicts with the ALJ’s assessed limitation of occasional 24 contact with others. 25 // 26 (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. 1 27 28 10 1 “[F]or an ALJ to rely on a job description in the [DOT] that 2 fails to comport with a claimant’s noted limitations, the ALJ must 3 definitively explain this deviation.” 4 (citing Johnson, 60 F.3d at 1435). 5 offered no explanation for his deviation from the DOT. Pinto, 249 F.3d at 847 Here, the ALJ erred because he 6 7 In addition, the ALJ erroneously relied on the VE’s testimony 8 to conclude that Plaintiff could perform the physical requirements 9 of his past work of security guard. (AR 39). The record did not 10 contain the necessary evidence to support a deviation from the DOT. 11 Cf. Pinto, 249 F.3d at 846 (for an ALJ to accept VE testimony that 12 contradicts the DOT, the “record must contain ‘persuasive evidence 13 to support the deviation’”) (quoting Johnson, 60 F.3d at 1435). 14 15 Moreover, the ALJ was required to elicit a reasonable 16 explanation for the conflict between the VE and DOT prior to relying 17 on the VE’s testimony. 18 1152-53 (9th Cir. 2007) (ALJ’s duty to develop the record requires 19 ALJ to reconcile apparent conflicts by “determin[ing] whether 20 [VE’s] explanation for the conflict is reasonable and whether a 21 basis exists for relying on the expert rather than the [DOT]”); 22 see also SSR 00-4p, 2000 WL 1898704 (2000). 23 accepted the VE’s answer that her testimony was consistent with 24 the DOT without obtaining the required explanation. 25 not inquire, and the VE did not offer, any explanation of how a 26 hypothetical person with the limitation of occasional contact with 27 others could perform the job of security guard requiring the 28 temperament of dealing with people. Cf. Massachi v. Astrue, 486 F.3d 1149, 11 However, the ALJ The ALJ did The ALJ erred by failing to 1 reconcile this conflict. Cf. Massachi, 486 F.3d at 1153-54 (ALJ 2 erred by failing to ask VE whether testimony conflicted with DOT 3 and, if so, whether there was a reasonable explanation for the 4 conflict). 5 6 The Agency contends that there is no conflict because the DOT 7 does not discuss frequency of contact with others and a “common 8 sense reading” of the DOT reveals that some jobs take place in 9 closed establishments. (Agency’s Mem. in Support of Answer at 5). 10 However, the DOT’s security guard job requirement of dealing with 11 people presumptively applies absent persuasive evidence supporting 12 a deviation from the DOT. 13 the ALJ failed to identify or rely upon any evidence to support 14 the deviation. Cf. Johnson, 60 F.3d at 1435. Here, 15 16 Finally, the VE testified that approximately 50 percent of 17 the jobs of security guard would be eroded for a hypothetical 18 person with the limitation of occasional contact with others. 19 82-83). 20 did not reconcile the conflict with the DOT. 21 the VE nor ALJ acknowledged the DOT’s defined temperament of 22 dealing with people. (AR Contrary to the Commissioner’s contention, this testimony (AR 83). Neither 23 24 For these reasons, the ALJ failed to develop the record and 25 support his decision with substantial evidence. Cf. Pinto, 249 26 F.3d at 847-48 by 27 evidence where 28 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 4 5 B. Remand Is Required 6 7 In sum, the ALJ’s decision at step four was not supported by 8 substantial evidence. In addition, the ALJ failed to develop the 9 record by reconciling the conflict between the VE and DOT, and this 10 failure was not “‘inconsequential to the ultimate nondisability 11 determination.’” 12 2012) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 (9th Cir. 13 2006)). 14 defects. Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. Accordingly, the case must be remanded to remedy these 15 16 On remand, the ALJ must fully develop the record and determine 17 whether sufficient evidence supports the conclusion that Plaintiff 18 is capable of finding and performing his past relevant work. 19 not, the ALJ must decide, based upon VE testimony, whether other 20 jobs exist in the national or local economy that Plaintiff can 21 perform. 22 23 24 25 26 27 28 13 If 1 2 VIII. 3 CONCLUSION 4 5 For the foregoing reasons, IT IS ORDERED that Judgment be 6 entered REVERSING the decision of the Commissioner and REMANDING 7 this matter for further proceedings consistent with this decision. 8 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of 9 this Order and the Judgment on counsel for both parties. 10 11 DATED: June 5, 2017 12 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 NOTICE 17 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, 18 WESTLAW OR ANY OTHER LEGAL DATABASE. 19 20 21 22 23 24 25 26 27 28 14

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