Ezequiel Melgoza v. Nancy A. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. LET JUDGMENT BE ENTERED ACCORDINGLY. (see document for details) (klg)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EZEQUIEL MELGOZA, 12 Plaintiff, 13 14 15 v. Case No. CV 17-2659 JC MEMORANDUM OPINION AND ORDER OF REMAND NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 SUMMARY On April 7, 2017, plaintiff Ezequiel Melgoza filed a Complaint seeking 20 review of the Commissioner of Social Security’s denial of plaintiff’s application 21 for benefits. The parties have consented to proceed before the undersigned United 22 States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 25 (collectively “Motions”). The Court has taken the Motions under submission 26 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; April 18, 2017 Case 27 Management Order ¶ 5. 28 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On November 28, 2012, plaintiff filed an application for Disability 7 Insurance Benefits alleging disability beginning on June 4, 2012, due to a repaired 8 shattered right shoulder, no more than 50% range of motion in his right shoulder, 9 stiffness of his left wrist, post left wrist surgery, anxiety, depression, migraines, 10 neck pain, lower back pain, and a puncture in his right lung. (Administrative 11 Record (“AR”) 28, 114, 137). The Administrative Law Judge (“ALJ”) examined 12 the medical record and heard testimony from plaintiff (who was represented by 13 counsel) and a vocational expert on December 4, 2015. (AR 1502-24). 14 On January 13, 2016, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 28-37). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: degenerative disc 17 disease of the cervical spine, bilateral shoulder impairments, a history of left 18 carpal tunnel release, back pain, a depressive disorder, post-traumatic stress 19 disorder, and anxiety (AR 30); (2) plaintiff’s impairments, considered singly or in 20 combination, did not meet or medically equal a listed impairment (AR 31); 21 (3) plaintiff retained the residual functional capacity to perform light work (20 22 C.F.R. § 404.1567(b) with additional limitations1 (AR 33); (4) plaintiff could not 23 perform any past relevant work (AR 35); (5) there are jobs that exist in significant 24 25 26 27 28 1 The ALJ determined that plaintiff was (i) unable to perform tasks at or above shoulder level bilaterally; (ii) unable to perform repetitive gripping, grasping, or torquing with the left wrist; (iii) unable to climb ladders, ropes, and scaffolds; (iv) able to occasionally climb, crouch, balance, stoop, crawl, and kneel; (v) unable to work in environments with exposure to significant hazards, including work at unprotected heights or near moving machinery; and (vi) limited to only unskilled tasks. (AR 33). 2 1 numbers in the national economy that plaintiff could perform, specifically rental 2 clerk, usher, call-out operator, and addresser (AR 36); and (6) plaintiff’s medically 3 determinable impairments could not reasonably have been expected to cause the 4 symptoms plaintiff alleged, and plaintiff’s statements regarding the intensity, 5 persistence, and limiting effects of such subjective symptoms were not entirely 6 credible (AR 34). 7 On February 7, 2017, the Appeals Council denied plaintiff’s application for 8 review. (AR 6). 9 III. APPLICABLE LEGAL STANDARDS 10 A. 11 To qualify for disability benefits, a claimant must show that he is unable “to Administrative Evaluation of Disability Claims 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than 12 15 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 16 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). To be considered 17 disabled, a claimant must have an impairment of such severity that he is incapable 18 of performing work the claimant previously performed (“past relevant work”) as 19 well as any other “work which exists in the national economy.” Tackett v. Apfel, 20 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 21 To assess whether a claimant is disabled, an ALJ is required to use the five- 22 step sequential evaluation process set forth in Social Security regulations. See 23 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 24 Cir. 2006) (citations omitted) (describing five-step sequential evaluation process) 25 (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at 26 steps one through four – i.e., determination of whether the claimant was engaging 27 in substantial gainful activity (step 1), has a sufficiently severe impairment (step 28 2), has an impairment or combination of impairments that meets or equals a listing 3 1 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (step 3), and retains the residual 2 functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 3 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the 4 burden of proof at step five – i.e., establishing that the claimant could perform 5 other work in the national economy. Id. 6 B. 7 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 8 Commissioner’s “final decision” was “based on legal error or not supported by 9 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 10 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 11 standard of review in disability cases is “highly deferential.” Rounds v. 12 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 13 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be 14 upheld if the evidence could reasonably support either affirming or reversing the 15 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s 16 decision contains error, it must be affirmed if the error was harmless. Treichler v. 17 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 18 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability 19 determination; or (2) ALJ’s path may reasonably be discerned despite the error) 20 (citation and quotation marks omitted). 21 Substantial evidence is “such relevant evidence as a reasonable mind might 22 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (citation 23 and quotation marks omitted). It is “more than a mere scintilla, but less than a 24 preponderance.” Id. When determining whether substantial evidence supports an 25 ALJ’s finding, a court “must consider the entire record as a whole, weighing both 26 the evidence that supports and the evidence that detracts from the Commissioner’s 27 conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation 28 and quotation marks omitted). 4 1 While an ALJ’s decision need not be drafted with “ideal clarity,” at a 2 minimum it must describe the ALJ’s reasoning with sufficient specificity and 3 clarity to “allow[] for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 4 487, 492 (9th Cir. 2015) (citations and internal quotation marks omitted); see 5 generally 42 U.S.C. § 405(b)(1) (“ALJ’s unfavorable decision must, among other 6 things, “set[] forth a discussion of the evidence” and state “the reason or reasons 7 upon which it is based”); Securities and Exchange Commission v. Chenery Corp., 8 332 U.S. 194, 196-97 (1947) (administrative agency’s determination must be set 9 forth with clarity and specificity). Federal courts review only the reasoning the 10 ALJ provided, and may not affirm the ALJ’s decision “on a ground upon which 11 [the ALJ] did not rely.” Trevizo, 871 F.3d at 675 (citations omitted). 12 A reviewing court may not conclude that an error was harmless based on 13 independent findings gleaned from the administrative record. Brown-Hunter, 806 14 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 15 conclude that an error was harmless, a remand for additional investigation or 16 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 17 (9th Cir. 2015) (citations omitted). 18 C. 19 At step five, the Commissioner must show that there is sufficient other work Pertinent Step Five Legal Standards 20 in the national economy a claimant can still do, taking into account the claimant’s 21 background (i.e., age, education, and work experience) and residual functional 22 capacity (i.e., tasks the claimant is still able to do despite any impairment-related 23 physical and mental limitations). 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. 24 §§ 404.1520(a)(4)(v) & (g), 404.1560(c); see Gutierrez v. Colvin, 844 F.3d 804, 25 806 (9th Cir. 2016) (citing Tackett, 180 F.3d at 1100). One way the 26 Commissioner may satisfy this burden is by obtaining testimony from an impartial 27 vocational expert (“vocational expert” or “VE”) about the type of work such a 28 claimant is still able to perform, as well as the availability of related jobs in the 5 1 national economy. See Gutierrez, 844 F.3d at 806-07 (citation omitted); 2 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett, 180 F.3d 3 at 1100-01). 4 When a vocational expert is consulted at step five, the ALJ typically asks 5 the VE at the hearing to identify specific examples of occupations that could be 6 performed by a hypothetical individual with the same characteristics as the 7 claimant. Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (citations omitted); 8 Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (citations omitted). The VE’s 9 responsive testimony may constitute substantial evidence of a claimant’s ability to 10 perform such occupations so long as the ALJ’s hypothetical question included all 11 of the claimant’s limitations supported by the record. See Hill, 698 F.3d at 116112 62 (citations omitted); Robbins v. Social Security Administration, 466 F.3d 880, 13 886 (9th Cir. 2006) (citation omitted). 14 A VE’s testimony generally should be consistent with the Dictionary of 15 Occupational Titles (“DOT”).2 See Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th 16 Cir. 2017) (“Presumably, the opinion of the VE would comport with the DOT’s 17 guidance.”); see generally Gutierrez, 844 F.3d at 807 (DOT “guides the [ALJ’s] 18 analysis” at step five). To the extent it is not – i.e., the VE’s opinion “conflicts 19 with, or seems to conflict with” the DOT – an ALJ may not rely on the VE’s 20 testimony at step five unless the ALJ has adequately resolved the potential 21 conflict. Gutierrez, 844 F.3d at 807 (citing SSR 00-4P, 2000 WL 1898704, at *2 22 (2000)); Rounds, 807 F.3d at 1003-04 (citations omitted); SSR 00-4p, 2000 WL 23 24 25 26 27 28 2 The DOT compiled by the U.S. Department of Labor “details the specific requirements for different occupations,” and is the Social Security Administration’s “‘primary source of reliable job information’ regarding jobs that exist in the national economy.” Gutierrez, 844 F.3d at 807; Zavalin, 778 F.3d at 845-46 (citing Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990)); see also 20 C.F.R. §§ 404.1566(d)(1), 404.1569. Neither the DOT nor a VE’s opinion, however, “automatically ‘trumps’” to the extent the two conflict. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting Social Security Ruling (“SSR”) 00-4p) (internal quotation marks omitted). 6 1 1898704, at *4 (“When vocational evidence provided by a VE [] is not consistent 2 with information in the DOT, the [ALJ] must resolve [the] conflict before relying 3 on the VE [] evidence to support a determination or decision that the individual is 4 or is not disabled.”). In each case where VE testimony is used, an ALJ generally 5 must affirmatively (1) ask the VE whether there is a conflict between the expert’s 6 opinions and the DOT requirements for a particular occupation; (2) “obtain a 7 reasonable explanation for any apparent conflict”; and (3) explain in the decision 8 how the ALJ resolved any such conflict. Massachi, 486 F.3d at 1152-53 (quoting 9 SSR 00-4p). 10 An ALJ need only resolve conflicts that are “obvious or apparent” – such as 11 when the VE testifies that a claimant is able to perform an occupation which 12 involves “essential,” “integral” or “expected” job requirements that appear to be 13 more than a claimant’s residual functional capacity would permit. See Gutierrez, 14 844 F.3d at 808 (conflict is “obvious or apparent” when VE testimony is “at odds 15 with” job requirements listed in DOT that are “essential, integral, or expected”). 16 The extent to which an ALJ must scrutinize a VE’s opinions is highly 17 “fact-dependent.” Lamear, 865 F.3d at 1205 (citation omitted). For example, 18 “less scrutiny” is required where the VE has identified a representative occupation 19 that is “familiar” (e.g., “cashiering”). Gutierrez, 844 F.3d at 808. In such cases an 20 ALJ may be able to resolve a potential conflict without inquiring further of the VE 21 – i.e., based on “common experience” that it is “likely and foreseeable” that a 22 claimant with certain limitations would still be able to perform all of the 23 “essential, integral, [and] expected” requirements the DOT described for the 24 particular occupation. See, e.g., Gutierrez, 844 F.3d at 807-08 (e.g., no “apparent 25 or obvious conflict” between DOT listing for “cashier” occupation which requires 26 “frequent reaching” and VE’s testimony that claimant could still work as a cashier 27 despite her inability to reach above shoulder level with her right arm given how 28 “uncommon it is for most cashiers to have to reach overhead” at all). 7 1 Conversely, where a representative occupation is “more obscure,” ordinarily 2 an ALJ would not be able to resolve an apparent conflict at step five based solely 3 on “common experience,” but instead would need to ask the VE to provide a more 4 detailed explanation of the apparently conflicting opinion. Lamear, 865 F.3d at 5 1205 (footnote omitted); see also id. (“The ALJ is not absolved of this duty [to 6 reconcile conflicts] merely because the VE responds ‘yes’ when asked if her 7 testimony is consistent with the DOT.”) (quoting Moore v. Colvin, 769 F.3d 987, 8 990 (8th Cir. 2014)); see, e.g., Buckner-Larkin v. Astrue, 450 Fed. Appx. 626, 9 628-29 (9th Cir. 2011) (conflict between DOT and VE testimony adequately 10 addressed where VE reasonably explained that deviation “was based on his own 11 labor market surveys, experience, and research” and ALJ’s decision addressed 12 explanation). 13 IV. DISCUSSION 14 Here, plaintiff asserts that the ALJ erred at step five in finding that plaintiff 15 could perform the representative occupations of rental clerk (DOT § 295.357-018, 16 1991 WL 672589 [Furniture-Rental Consultant]), usher (DOT § 344.677-014, 17 1991 WL 672865), call-out operator (DOT § 209.587-010, 1991 WL 672186), and 18 addresser (DOT § 237.367-014, 1991 WL 671797) (collectively “representative 19 occupations”) based on testimony from the vocational expert which, without 20 explanation, deviated from the DOT. (Plaintiff’s Motion at 5-8). As the Court 21 cannot find that the ALJ’s decision in this regard is supported by substantial 22 evidence or that any error was harmless, a remand is warranted. 23 First, here, there is an apparent conflict between the vocational expert’s 24 testimony and the DOT. In response to a hypothetical question posed by the ALJ 25 at the hearing, the VE opined that an individual with the same characteristics as 26 plaintiff would be able to perform each of the representative occupations. (AR 27 1517-21). According to the DOT, however, the representative occupations 28 involve reaching either occasionally (DOT §§ 295.357-018 [Furniture-Rental 8 1 Consultant]), 344.677-014 [Usher], 209.587-010 [Call-Out Operator]), or 2 frequently (DOT § 237.367-014 [Addresser]). As plaintiff points out, “reaching” 3 for purposes of the DOT generally “connotes the ability to extend one’s hands and 4 arms ‘in any direction[.]’” Gutierrez, 844 F.3d at 808 (citing SSR 85-15, 1985 5 WL 56857). While the DOT listings do not indicate that the representative 6 occupations require reaching in any specific direction, they also do not suggest 7 that acceptable and efficient performance of such occupations would never require 8 reaching at or above shoulder level. Consequently, the reaching requirements for 9 the representative occupations appear to be inconsistent with plaintiff’s inability to 10 do any work “at or above shoulder level.” Cf., e.g., Gutierrez, 844 F.3d at 808 11 (“[N]ot every job that involves reaching requires the ability to reach overhead.”). 12 The VE generally indicated that her testimony was consistent with the DOT (AR 13 1522), but provided no explanation for her opinion which essentially suggests that 14 an individual like plaintiff would be able to perform occupations which, according 15 to the DOT, seem to require certain activities that are beyond plaintiff’s abilities. 16 The Court cannot infer from common experience that it is likely or 17 foreseeable that a rental clerk, usher, call-out operator, or addresser who, like 18 plaintiff, is unable to do any work at or above shoulder level would still be able 19 adequately to perform all essential, integral, and/or expected tasks for even one of 20 the representative occupations. Indeed, the DOT suggests quite the opposite. For 21 example, according to the DOT, the rental clerk occupation involves work at the 22 light exertional level, which could require “pushing and/or pulling of arm [] 23 controls,” and/or “the constant pushing and/or pulling of materials,” as well as 24 occasional “[s]tooping” and “[c]rouching.” (DOT § 295.657-018, 1991 WL 25 672589). A rental clerk, among other general tasks, typically “[r]ents furniture 26 and accessories to customers,” “[t]alks to customer[s] to determine furniture 27 preferences and requirements,” “[g]uides or accompanies customer[s] through 28 showroom, answers questions, and advises customer on compatibility of various 9 1 styles and colors of furniture items.” (DOT § 295.657-018, 1991 WL 672589). 2 Common experience strongly suggests that a rental clerk could very likely need to 3 reach at or above shoulder level in order adequately to perform the “essential, 4 integral, or expected tasks” of the position (e.g., it is reasonably foreseeable that a 5 rental clerk might need to reach above shoulder level while showing furniture to a 6 customer, especially if the clerk was crouching or stooping to display the lower 7 portion of a particular item). 8 The usher occupation, according to the DOT, also involves work at the light 9 exertional level and occasional stooping and crouching, and requires a worker, 10 among other tasks, to “[a]ssist[] patrons at entertainment events to find seats . . . 11 and locate facilities, such as restrooms and telephones . . . [d]istribute[] programs 12 to patrons,” and “[a]ssist[] other workers to change advertising display[s].” (DOT 13 § 344.677-014, 1991 WL 672865). It is neither “unlikely” nor “unforeseeable” 14 that an usher performing his job duties would at various points be required to 15 reach at or above shoulder level (e.g., while pointing patrons in the direction of 16 seats or facilities located on a higher level of an amphitheater or helping a 17 colleague replace an advertising poster on the wall). 18 Similarly, the DOT lists the addresser and call-out operator occupations as 19 involving work at the sedentary exertional level, thus, in part, requiring “sitting 20 most of the time.” (DOT §§ 209.587-010, 1991 WL 672186 [call-out operator], 21 237.367-014, 1991 WL 671797 [addresser]). It is reasonably foreseeable that an 22 addresser or call-out operator would need to reach at or above shoulder level from 23 a sitting position at regular points during the day while performing one of the 24 essential, integral, or expected tasks of either position (e.g., an addresser while 25 “sort[ing] mail”, or a call-out operator while “using [a] telephone” or entering data 26 into a computer). (DOT §§ 209.587-010, 1991 WL 672186, 237.367-014, 1991 27 WL 671797). 28 /// 10 1 Second, since neither the VE nor the ALJ here acknowledged the apparent 2 conflict between the VE’s testimony and the DOT’s requirements for the 3 representative occupations, neither made any attempt to explain or justify such 4 conflict. (AR 36-37, 1516-22). Accordingly, the VE’s testimony, which the ALJ 5 adopted, could not serve as substantial evidence supporting the ALJ’s 6 determination at step five that plaintiff could perform any of the representative 7 occupations. See Rounds, 807 F.3d at 1003 (citations omitted). 8 Third, this Court cannot confidently conclude that the ALJ’s error was 9 harmless. As discussed above, it cannot fairly be determined from the instant 10 record, the DOT, or even common experience whether the reaching required by 11 any of the representative occupations could be performed in an acceptable and 12 efficient manner by a worker who, like plaintiff, is unable to do any work at or 13 above shoulder level bilaterally. See, e.g., Lamear, 865 F.3d at 1206 (court cannot 14 say ALJ’s failure to inquire more specifically of vocational expert was harmless 15 error where unable to determine from the record, the DOT, or common experience 16 whether the VE identified representative occupations with DOT requirements that 17 exceed a claimant’s abilities); Zavalin, 778 F.3d at 848 (ALJ’s failure adequately 18 to reconcile apparent conflict between VE and DOT not harmless error where 19 court was unable to determine from “mixed record” whether substantial evidence 20 supported ALJ’s step-five finding that claimant could perform other work the VE 21 identified) (citing Massachi, 486 F.3d at 1154). In addition, defendant points to 22 no persuasive evidence in the record which supports the VE’s apparent deviation 23 from the DOT or which could otherwise support the ALJ’s non-disability 24 determination at step five. See generally Zavalin, 778 F.3d at 846 (“ALJ’s failure 25 to resolve an apparent inconsistency may leave . . . a gap in the record that 26 precludes [court] from determining whether the ALJ’s decision is supported by 27 substantial evidence”) (citing Massachi, 486 F.3d at 1154). 28 /// 11 1 Finally, the Court rejects defendant’s contention that “[p]laintiff waived his 2 right to challenge the VE’s upper extremity testimony when he failed to raise the 3 issue or challenge that testimony both at hearing and before the Appeals Council.” 4 (Defendant’s Motion at 6) (citing Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 5 1999); Shaibi v. Berryhill, 870 F.3d 874, 881 (9th Cir. 2017), opinion amended 6 and superseded on denial of reh’g, Shaibi v. Berryhill (“Shaibi II”), __ F.3d __, 7 2017 WL 7798666 (9th Cir. Aug. 22, 2017)). Such a waiver does not occur 8 where, like here, the ALJ failed adequately to resolve an apparent conflict between 9 the VE’s testimony and the DOT. See Shaibi II, __ F.3d at __, 2017 WL 7798666, 10 at *6 (“[A]n ALJ is required to investigate and resolve any apparent conflict 11 between the VE’s testimony and the DOT, regardless of whether a claimant raises 12 the conflict before the agency.”) (citing SSR 00-4P; Lamear, 865 F.3d at 1206-07; 13 Massachi, 486 F.3d at 1152-54). 14 V. CONCLUSION 15 For the foregoing reasons, the decision of the Commissioner of Social 16 Security is reversed in part, and this matter is remanded for further administrative 17 action consistent with this Opinion.3 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 DATED: March 8, 2018 20 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, “additional proceedings can remedy defects in the original administrative proceeding. . . .” Garrison, 759 F.3d at 1019 (citation and internal quotation marks omitted). 12

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?